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FIDUCIARY LITIGATION:

DUTIES AND OBLIGATIONS

BETWEEN PARENT, CHILD, AND THIRD PARTIES

Presenter

JOHN F. NICHOLS, SR.

Nichols Law, P.L.L.C.

[email protected]

www.nicholslaw.com

Authors

JOHN F. NICHOLS, SR.

TRISTAN H. LONGINO

Nichols Law, P.L.L.C.

Tradition Bank Plaza

5020 Montrose Blvd., Suite 400

Houston, Texas 77006

(713) 654-0708

(713) 654-0706 (Fax)

[email protected]

www.nicholslaw.com

State Bar of Texas

FIDUCIARY LITIGATION:

BEYOND THE BASICS COURSE

December 1-2, 2011

San Antonio

CHAPTER 4

mailto:[email protected]

http://www.nicholslaw.com/

mailto:[email protected]

http://www.nicholslaw.com/

BIOGRAPHICAL INFORMATION ON JOHN F. NICHOLS, Sr.

EDUCATION

B.S., Rice University 1963

LL.B., University of Houston 1967

PROFESSIONAL ACTIVITIES

Board Certified: Family Law, Personal Injury, Civil Trial

Past Chairperson: Litigation Section, State Bar of Texas

Diplomate: American Board of Trial Advocates

Fellow: American Academy of Matrimonial Lawyers

Fellow: International Society of Barristers

Fellow: American College of Family Trial Lawyers (Charter Member)

Fellow: State Bar College (Charter Member)

State Bar of Texas Course Director, Advanced: Family Law, Civil Trial Law, Evidence and Discovery,

Fiduciary Litigation, Trial of a Family Law Jury Case

Best Lawyers in America - all editions

Texas Super Lawyers - all editions

LAW RELATED PUBLICATIONS

Author of 150 articles on family law, fiduciary litigation, personal injury and civil trial law. Two books on

depositions (family law and personal injury law).

HONORS

State Bar of Texas – Gene Cavin Award

Texas Center for the Judiciary – Exemplary Article Award

Rice University – Athletic Hall of Fame (Football)

TRISTAN H. LONGINO Nichols Law, P.L.L.C. (www.nicholslaw.com)

Tradition Bank Plaza, 5020 Montrose Blvd., Suite 400, Houston, Texas 77006

Phone: (713) 654-0708, Fax: (713) 654-0706

[email protected]; www.linkedin.com/in/tristanlongino

EDUCATION

University of Houston Law Center J.D. May 2011

Treasurer of Family Law Organization

Moot court speaker: semifinalist in John Black Moot Court Competition and competitor in ABA Negotiation

and Mediation Competitions

University of Richmond B.S. in Business Administration, May 2005

CERTIFICATIONS

Certified in mediation by A.A. White Dispute Resolution Center June 7, 2009

Certified in advanced family mediation by Blakely Advocacy Institute February 20, 2011

EXPERIENCE

Nichols Law, P.L.L.C., Houston, Texas Jan 2011 – Current

Attorney at Law, Former Law Clerk

Work on cases at trial level

Briefing in Texas Appellate Courts and in the U.S. 5th Circuit Court of Appeals

Assist with work on cases and appeals

Assist in writing and editing CLE and other materials for publication

312th

District Court, Houston, Texas May 2010 – August 2010

Summer Intern for the Hon. Robert Hinojosa

Worked on renditions with judge, one involving complex property issues

Duane Morris, Houston, Texas June 2009 – August 2009

Summer Associate

Wrote client alerts

Researched and analyzed legal issues for partners and associates

Dell Financial Services, Austin, Texas June 2007 – July 2008

Operations Coordinator

Audited leases and loans to commercial clients

Merrill Lynch, Pennington, New Jersey 2005 – 2007

Financial Advisor

Advised retail clients on financial plans and holdings; mentored other advisors

Sandler O’Neill & Partners, L.P., New York, New York Summers 2002 – 2004

Summer Intern

Managed various servers and databases; provided end-user support

PUBLICATIONS

1. Dealing with Damages: Recoveries as Property (State Bar of Texas‘s 34th Annual Marriage Dissolution

Institute, 2011)

2. Fiduciary Litigation (State Bar of Texas‘s Advanced Family Law Course, 2011)

FOREWORD

―[P]arents generally stand in the role of fiduciaries toward their minor children.‖ S.V. v. R.V., 933 S.W.2d 1, 8

(Tex. 1996); see Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.1962) (confidential relationships may arise from

moral, social, domestic, or purely personal relationships, such as family relationships, where there is evidence of

justifiable trust and confidence to create a fiduciary relationship).

Fiduciary Litigation: Duties and Obligations between

Parent, Child, and Third Parties Chapter 4

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................................................. 1

II. THE FIDUCIARY RELATIONSHIP................................................................................................................ 1 A. The Fiduciary ........................................................................................................................................ 1 B. The Fiduciary Relationship ................................................................................................................... 1 C. Breach of a Fiduciary Duty ................................................................................................................... 2

1. Analysis to Determine Breach ................................................................................................. 2 2. Controlling Law – Is the Breach Statutory, Contractual, or Arising Under Common Law ..... 2

III. REFERENCES .................................................................................................................................................. 2 A. Statutes .................................................................................................................................................. 2 B. Common Law ........................................................................................................................................ 3 C. Books, Articles and Treatises ................................................................................................................ 3

IV. MARRIAGE AND EMANCIPATION OF MINORS ....................................................................................... 3 A. Marriage of Minors ............................................................................................................................... 3

1. Presumption of Validity ........................................................................................................... 3 2. Ceremonial Marriage of a Minor ............................................................................................. 3 3. Common Law Marriage of a Minor ......................................................................................... 4 4. Annulment of Marriage of Minor ............................................................................................ 4 5. Out of State Marriage of a Minor............................................................................................. 4

B. Emancipation of Minors through Marriage ........................................................................................... 4 C. Duration of Emancipation of Minor through Marriage ......................................................................... 4

V. THE PARENT-CHILD RELATIONSHIP ........................................................................................................ 4 A. Parent‘s Rights and Duties .................................................................................................................... 4 B. Child‘s Rights and Duties ..................................................................................................................... 5 C. Adoptive Parents ................................................................................................................................... 5 D. Rights of Extended Relatives ................................................................................................................ 5 E. Rights of Siblings .................................................................................................................................. 6 F. Gestational Agreements ........................................................................................................................ 6

VI. LIABILITY OF PARTIES ................................................................................................................................. 6 A. Liability of Parents to Children ............................................................................................................. 6

1. Duty to Support ........................................................................................................................ 6 2. Harm to Child .......................................................................................................................... 6 3. Parents as Fiduciaries ............................................................................................................... 7

B. Liability of Parents for the Conduct of Their Children ......................................................................... 7 1. Generally .................................................................................................................................. 7 2. Harm to Property ...................................................................................................................... 8 3. Harm to Persons ....................................................................................................................... 8

C. Liability of Child to Others ................................................................................................................... 9 D. Limitations .......................................................................................................................................... 10

VII. FIDUCIARY DUTIES OF COURT APPOINTEES IN SUITS AFFECTING THE PARENT-CHILD

RELATIONSHIP (SAPCR) ............................................................................................................................. 10 A. Introduction ......................................................................................................................................... 10 B. Attorney Ad Litem .............................................................................................................................. 10

1. Role of the Attorney Ad Litem .............................................................................................. 10 2. The Attorney Ad Litem‘s Fees .............................................................................................. 10



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C. Guardian Ad Litem ............................................................................................................................. 10 1. Role of the Guardian Ad Litem.............................................................................................. 10 2. The Guardian Ad Litem‘s Fee ............................................................................................... 11

D. Amicus Attorney ................................................................................................................................. 11 1. Role of the Amicus Attorney ................................................................................................. 11 2. The Amicus Attorney‘s Fee ................................................................................................... 12

E. Derived Judicial Immunity .................................................................................................................. 12 1. Court Appointed Attorneys .................................................................................................... 12 2. Mental Health Expert (Psychologist or Psychiatrist) ............................................................. 12

IV. STATUTES – OTHER CODES & RULES CREATING FIDUCIARY DUTIES TO CHILDREN .............. 13 A. ERISA Fiduciaries [29 U.S.C.A. §§ 1001-1461] ................................................................................ 13 B. Guardian and Ward [Tex. Prob. Code §§ 761(a)(6), 761(c)(1) and (4), 668(2)] ................................ 13 C. Next Friends [Tex. R. Civ. P. 44] ....................................................................................................... 13 D. Trustees [Tex. Prop. Code §§ 114.001-114.008] ................................................................................ 14 E. Texas Uniform Tarnsfers to Minors Act (TUTMA) [Tex. Prop. Code § 141.001-141.025] .............. 14 F. Family Limited Partnership [26 U.S.C.A. § 704(e)] ........................................................................... 15

APPENDIX 1 ............................................................................................................................................................... (1)

APPENDIX 2 ............................................................................................................................................................... (6)

APPENDIX 3 ............................................................................................................................................................... (9)

APPENDIX 4 ............................................................................................................................................................. (11)

APPENDIX 5 ............................................................................................................................................................. (13)

APPENDIX 6 ............................................................................................................................................................. (15)

FIDUCIARY LITIGATION DUTIES AND OBLIGATIONS BETWEEN PARENT, CHILD, AND THIRD

PARTIES (PowerPoint Presentation)



1

FIDUCIARY LITIGATION: DUTIES

AND OBLIGATIONS BETWEEN

PARENT, CHILD, AND THIRD

PARTIES

I. INTRODUCTION

The legal authority creating or recognizing a

fiduciary relationship is derived from statutory or

common law. Categorically, a fiduciary relationship

can generally be thought of as being created by status,

contract, or fiduciary relation. Tamar Frankel,

Fiduciary Law, 71 Calif. L. Rev. 795 (1983). This

author feels this can be further simplified – a fiduciary

relationship arises either from the relationship between

the parties or because it was a bargained for

relationship.

A fiduciary relationship recognized due to the

relationship between parties generally involves one

party (the fiduciary) as having partial or full monopoly

over the means for satisfying the needs of the other

party (the dependent or beneficiary). Id. at 798-799.

The second method for creation of a fiduciary

relationship is by contract: 1) where the parties

determine their own needs, 2) bargain to satisfy them,

and 3) enforce that bargain as needed. Id.

The parent-child fiduciary relationship clearly

falls into the status category. Statutory and common

law define the entry and exit points for these status

fiduciary relationships, with the law often only

defining the outer limits of the fiduciary‘s authority,

giving a higher priority to the security of the parties

than the dependent‘s or beneficiary‘s freedom. Id. As

a result, there is a heightened need for practitioners

dealing with these status based fiduciary relationships

to not only be informed of the law but also to be

vigilant for abuse of the relationship by the fiduciary

due to the inequality of power between the parties.

Not surprisingly, the duties and obligations

between parent, child, and third parties in Texas arise

from statutory and common law authority. Parents

―generally stand in the role of fiduciaries toward their

minor children.‖ S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.

1996). This article outlines the facets of these duties

and obligations during the child‘s minority.

II. THE FIDUCIARY RELATIONSHIP

A. The Fiduciary

A fiduciary is ―any person who occupies a

position of peculiar confidence towards another.‖

Kinzbach Tool Co., Inc. v. Corbett-Wallace Corp., 160

S.W.2d 509, 512 (Tex. 1942).

B. The Fiduciary Relationship

A fiduciary relationship exists when parties are

―under a duty to act for or give advice for the benefit of

another upon matters within the scope of the

relation[ship].‖ Texas Bank & Trust Co. v. Moore, 595

S.W.2d 502, 507 (Tex. 1980) (citing Restatement,

Torts, Section 874).

These relationships often arise as a matter of law,

but may also arise as a matter of fact through informal

relations where one party trusts and relies upon

another. Moore, 595 S.W.2d at 507. In short, a

fiduciary relationship is not limited to formal cases,

such as trustee and beneficiary in a trust, attorney and

client, guardian and ward, etc., ―but it exists in all

cases in which influence has been acquired and abused,

in which confidence has been reposed and betrayed,

and the origin of the confidence is immaterial, and may

be moral, social, or domestic, or merely personal.‖ Id.

at 507 (citing Higgins v. Chicago Title & Trust Co.,

312 Ill. 11, 18, 143 N.E. 482, 484 (1924). Fiduciary

duties between parent and child can be layered, where

the parent has an informal relationship with the child

that gives rise to a fiduciary relationship as a matter in

fact, but is also a fiduciary as a matter of law through a

UTMA (Uniform Transfers to Minors Act, formerly

Uniform Gift to Minors Act), 529, trust, or other

instrument in which the parent acts as the child‘s

trustee, principal, guardian, or custodian.

A fiduciary implicitly agrees to certain duties by

entering into a fiduciary relationship. Generally, these

duties can be classified as:

1. Duty of loyalty. The fiduciary must

enforce the duty of loyalty. The

fiduciary a fiduciary is prohibited from

abusing his position for personal gain at

the expense of the beneficiary and must

avoid conflicts of interest. See Slay v.

Burnett Trust, 187 S.W.2d 377, 378

(Tex. 1945). See A. Scott, The Laws of

Trusts § 170 (4th ed. 1987)

2. Duty to Act Prudently. A fiduciary must

exercise the care of a reasonably prudent

person. Wright v. Nimmons, 641 F.

Supp. 1391 (S.D. Tex. 1986).

3. Duty to Render Accurate Accounts. A

fiduciary must maintain full, accurate

and orderly records concerning the

status of the estate and all of the acts

performed by the fiduciary. See Corpus

Christi Bank and Trust v. Roberts, 587

S.W.2d 173 (Tex. Civ. App.—Corpus

Christi 1979), aff’d, 597 SW.2d 752

(1980).

4. Duty of Full Disclosure. The ―fail safe‖

mechanism of the fiduciary relationship



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is the duty of full disclosure. Jackson

Law Office v. Chappell, 37 S.W.3d 15,

22 (Tex. App.—Tyler 2000, pet.

denied). A fiduciary has much more

than the traditional obligation to avoid

making any material misrepresentations;

he has an affirmative duty to make a full

and accurate confession of all his

fiduciary activities, transactions, profits,

and mistakes. Id.; Montgomery v.

Kennedy, 669 S.W.2d 309, 312-14 (Tex.

1984).

Stacy L. Kelly, Duties of Fiduciaries: Agents Under A

Power of Attorney, Trustees, Executors, Guardians,

and Guardians Ad Litem, Wills and Probate Institute,

University of Houston Law Center, May 2002

(http://www.tklaw.com/resources/documents/Duties%2

0of%20Fiduciaries%20Agents%20Under%20a%20Po

wer%20of%20Attorney%20%28Kelly,%20S.%29.pdf)

. See the aforementioned informative article by Stacy

Kelly on the subject, which fully details the general

duties of a fiduciary quoted from her work above and,

additionally, the duties of agents under a power of

attorney, trustees, executors/administrators, guardians,

and guardians ad litem/next friends.

C. Breach of a Fiduciary Duty

1. Analysis to Determine Breach

All fiduciary cases, and the determination of

whether a cause of action exists, begin with the

analysis we learned in law school, and often repeated

by noted Dallas trial lawyer Charles M. Wilson, III in

his tort lectures for the State Bar of Texas on duty,

breach of duty, causation, and damages, to wit:

Q1. Is there a duty (statutory, contractual or

common law) owed by the fiduciary to the beneficiary?

If yes,

Q2 Has there been a breach of that duty by the

fiduciary?

If yes,

Q3 Has the breach by the fiduciary produced,

caused or resulted in actual damages to the

beneficiary?

If yes,

Q4 What actual economic damages, or pecuniary

loss, to the beneficiary resulted from the breach by the

fiduciary?

And,

Q5 By clear and convincing evidence, was the

economic or pecuniary loss or harm to the beneficiary

the result of fraud, malice or gross negligence of the

fiduciary?

If yes,

Q6 What sum of money, if any, if now paid in

cash, should be assessed against the Fiduciary and

awarded to the Beneficiary as exemplary damages, if

any, for the conduct in question?

2. Controlling Law – Is the Breach Statutory,

Contractual, or Arising Under Common Law

As discussed previously, a fiduciary duty may or

can be created under a variety of contexts. When

evaluating a fiduciary case, it is important at the outset

to determine what applies by determining whether the

relationship was:

(1) Created or controlled by a specific statute,

with specific elements of duty or proof; or,

(2) Created or modified by a contractual

agreement between the fiduciary and

beneficiary; or,

(3) Created or controlled by common law.

Crim Truck & Tractor Co. v. Navistar Int’l, 823

S.W.2d 591, 594 (Tex. 1992).

III. REFERENCES

Useful references in the form of statutes, cases,

books, articles, and treatises are helpful in

understanding this topical area of the law. They are:

A. Statutes

See later sections for discussion and further detail

on statutory sources of fiduciary duties. Immediately

below is a short summary of sections relevant to this

topic that create a duty or provide a remedy.

(1) ERISA Fiduciaries - 29 U.S.C.A., § 1001-

1461;

(2) Guardian - Tex. Prob. Code § 761(a)(6) and

(b), 761(c)(1) and (4), 668(2);

(3) Guardian Ad Litems [quasi - statutory] –

Tex. R. Civ. P. 173;

(4) Next Friend – Tex. R. Civ. P. 44;

(5) Personal Representatives [temporary,

permanent, dependent or independent] – Tex.

Prob. Code §§ 222(a)(1)(F) and (2),

222(b)(1), (2) and (4), 241(a)(1) and (2),

245(2);

http://www.tklaw.com/resources/documents/Duties%20of%20Fiduciaries%20Agents%20Under%20a%20Power%20of%20Attorney%20%28Kelly,%20S.%29.pdf





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(6) Power of Attorney – Tex. Prob. Code §

489B(a);

(7) Tex. Fam. Code, Chapter 2, Subchapters B

and E (marriage relationship of minors);

(8) Trustees - Texas Property Code – Tex. Prop.

Code Ann. §§ 111.035(b)(4)(B), 113.051,

111.035(c), 111.052, 111.053,

113.082(a)(1)(3) and (4), 113.15(a),

114.061(b), 114.064(a).

B. Common Law

Fiduciary duties, as discussed, may arise out of

common law. What follows is a brief list of cases and

their holdings on various relevant duties that the courts

have recognized, to wit:

(1) Executors & trustees – executors and trustees

owe a fiduciary duty to the beneficiaries of

the estate or trust. See Ditta v. Conte, 298

S.W.3d. 187, 191. (Tex.2009) (trustees); see

e.g., Montgomery v. Kennedy, 669 S.W.2d

309, 313 (Tex. 1984) (trustee of testamentary

trust owed fiduciary duty to life beneficiary);

Humane Soc’y v. Austin Nat’l Bank, 531

S.W.2d 574, 577 (Tex. 1975) (as executor of

estate, bank owed fiduciary duty to

beneficiary).

(2) Holders of power of attorney – persons

holding powers of attorney owe a fiduciary

duty to the transferors of the power of

attorney. See Slum v. Stum, 845 S.W.2d 407,

414-15 (Tex. App.—Fort Worth 1992, no

writ), disapproved on other grounds,

Humphreys v. Meadows, 938 S.W.2d 750

(Tex. App.—Fort Worth 1996, writ denied).

(3) Spouses – spouses generally owe a fiduciary

duty to each other. Boaz v. Boaz, 221 S.W.3d

126, 133 (Tex. App.—Houston [1st Dist.]

2006, no pet.); Southwest Tex. Pathology

Assocs. v. Roosth, 27 S.W.3d 204, 208 (Tex.

App.—San Antonio 2000, pet. dism‘d); see

Ditta v. Conte, 298 S.W.3d. 187. (Tex.2009)

(dicta). Spouses in a contested-divorce

proceeding do not owe each other a fiduciary

duty. Boar, 221 S.W.3d at 133; Boyd v.

Boyd, 67 S.W.3d 398, 405 (Tex. App.—Fort

Worth 2002, no pet.).

(4) O‘Connor‘s Texas Causes of Action (2011),

Chapter 11 [Fiduciary Duty], §2, pages 259-

61.

C. Books, Articles and Treatises

(1) Tamar Frankel, Fiduciary Law, 71 Calif. L.

Rev. 795 (1983);

(2) L. Wayne Scott, Liability of Parents for

Conduct of Their Child Under Section 33.01

of the Texas Family Code: Defining the

Requisite Standards of "Culpability', 20 St.

Mary's L.J. 69 (1988);

(3) Carl E. Schneider, On the Duties and Rights

of Parents, 81 Va. L. Rev. 2477 (1995);

(4) Eve M. Brank, Stephanie C. Kucera, and

Stephanie A. Hays, Parental Responsibility

Statutes: An Organization and Policy

Implications, 7 J. L. Fam. Stud. 1 (2005);

(5) Elizabeth S. Scott and Robert E. Scott,

Parents as Fiduciaries, 81 Va. L. Rev. 2401

(1995);

(6) Stacy L. Kelly, Duties of Fiduciaries: Agents

Under A Power of Attorney, Trustees,

Executors, Guardians, and Guardians Ad

Litem, Wills and Probate Institute, University

of Houston Law Center, May 2002

(http://www.tklaw.com/resources/documents/

Duties%20of%20Fiduciaries%20Agents%20

Under%20a%20Power%20of%20Attorney%

20%28Kelly,%20S.%29.pdf).

IV. MARRIAGE AND EMANCIPATION OF

MINORS

A. Marriage of Minors

1. Presumption of Validity

Every marriage is presumed valid and will be

upheld against claims of invalidity ―unless a strong

reason exists for holding the marriage void or

voidable.‖ Tex. Fam. Code Ann. § 1.101 (West).

This presumption is rebuttable upon evidence the

minor spouse lacked capacity to marry. Kingery

v. Hintz, 124 S.W.3d 875, 876 (Tex. App.—

Houston [14th Dist.] 2003, no pet.).

2. Ceremonial Marriage of a Minor

Chapter 2, Subchapter B of the Texas Family

Code addresses the subject of underage applicants for

marriage: ―Except as otherwise provided by this

subchapter or on a showing that a prior marriage has

been dissolved, a county clerk may not issue a

marriage license if either applicant is under 18 years of

age.‖ Tex. Fam. Code Ann. § 2.101 (West). The

Family Code creates several exceptions to this

prohibition. The first method is that, a parent may

consent to the marriage as evidenced in a written

declaration of their consent before the clerk,

provided the minor is between ages of 16 and 18.

Tex. Fam. Code Ann. § 2.102 (West). The second

method for a minor to marry is by petitioning the

court in their own name for an order granting



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permission to marry. Tex. Fam. Code Ann. §

2.103 (West). 3. Common Law Marriage of a Minor

The party seeking to establish an informal

marriage must demonstrate he or she has the legal

capacity to marry. Kingery v. Hintz, 124 S.W.3d 875,

877 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

―A person under 18 years of age may not: (1) be a

party to an informal marriage; or (2) execute a

declaration of informal marriage under Section 2.402.‖

Tex. Fam. Code Ann. § 2.401 (West). This age

requirement was added by the Texas Legislature in

1997. Act of May 26, 1997, 75th Leg., R.S., ch. 1362,

§ 1, 1997 Tex. Gen. Laws 5113. Unlike with

ceremonial marriage, there is no statutory provision

allowing a minor to obtain consent to enter into an

informal marriage. Kingery, 124 S.W.3d at 877.

4. Annulment of Marriage of Minor

The court may annul a marriage of a person

between 16 and 18 years of age, if the marriage

occurred without parental consent or without a court

order as provided by Subchapters B and E, Chapter 2.

Tex. Fam. Code Ann. § 6.102 (West).

5. Out of State Marriage of a Minor

Texas will recognize an out-of-state marriage, but

the marriage must have been valid under that state‘s

laws in order to be given full faith and credit.

Additonally, the marriage must not run afoul of Texas

public policy. In this regard, Texas will not give

comity to foreign law that is against ―good morals or

natural justice‖ or is ―prejudicial to the general

interests of [Texas] citizens.‖ Larchmont Farms, Inc.

v. Parra, 941 S.W.2d 93, 95 (Tex. 1997).

Texas should grant comity and recognize the

marriage of a minor validly solemnized in another

state, even if their requirements for the marriage of a

minor are less stringent than those of Texas (and as

long as those laws were not so contrary to Texas public

policy). See generally Loughran v. Loughran, 292

U.S. 216, 223, 54 S. Ct. 684, 686-87, 78 L. Ed. 1219

(1934) (―Marriages not polygamous or incestuous, or

otherwise declared void by statute, will, if valid by the

law of the state where entered into, be recognized as

valid in every other jurisdiction). If Texas did refuse to

recognize the marriage as an affront to ―good morals or

natural justice,‖ as it does for same-sex marriages

under the Defense of Marriage Act, the minor would

have to return to the state where the marriage occurred

to seek a divorce.

Once the minor had relocated to Texas, the law of

this state will be applied from that point forward. Tex.

Fam. Code Ann. § 1.103 (West).

B. Emancipation of Minors through Marriage

One major consideration an attorney must keep in

mind when dealing with married minors in Texas is

that, unless otherwise expressly provided by statute or

the constitution, ―a person, regardless of age, who has

been married in accordance with the law of this state

has the capacity and power of an adult, including the

capacity to contract.‖ Tex. Fam. Code Ann. § 1.104

(West). This Section will likely affect any analysis

being performed as to whether any fiduciary duty is

owed by a parent or adult to the minor and,

additionally, allows for the creation of fiduciary duties

in the minor toward others. An example of this in

action would be the creation of a fiduciary duty in the

minor spouse toward the management of community

property. Southwest Tex. Pathology Assocs. V. Roosth

27 S.W.3d 204, 208 (Tex. App.—San Antonio 2000,

pet. dism‘d); Osuna v. Quintana, 993 S.W.2d 201, 207

(Tex. App.—Corpus Christi 1999, no pet.). In essence,

the minor is emancipated when he or she is validly

married in accordance with the laws of Texas. Kingery

v. Hintz, 124 S.W.3d 875 (Tex. App.—Houston [14th

Dist.] 2003, no pet.).

C. Duration of Emancipation of Minor through

Marriage

When a minor‘s marriage ends in divorce, the

minor retains his or her status as an adult (remains

emancipated) and, therefore, does not need permission

to enter into a second marriage. See Laird v. Swor, 737

S.W.2d 601, 602-03 (Tex. App.—Beaumont 1987, no

writ) (father‘s support obligation terminated when his

minor daughter married and was not reinstated when

she divorced). This is not the case with annulment;

when a minor‘s marriage is annulled, the minor‘s

disabilities are reinstated. Fernandez v. Fernandez,

717 S.W.2d 781, 783 (Tex. App.—El Paso 1986, writ

dism‘d).

V. THE PARENT-CHILD RELATIONSHIP

A. Parent’s Rights and Duties

Title 5 of the Texas Family Code addresses the

parent-child relationship and suits affecting it. The

relevant Chapter to this article is Chapter 151 – Rights

and Duties in Parent-Child Relationship. Section

151.001 is set in full below.

(a) A parent of a child has the following

rights and duties:

(1) the right to have physical possession,

to direct the moral and religious

training, and to designate the residence

of the child;

(2) the duty of care, control, protection,

and reasonable discipline of the child;



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(3) the duty to support the child,

including providing the child with

clothing, food, shelter, medical and

dental care, and education;

(4) the duty, except when a guardian of

the child's estate has been appointed, to

manage the estate of the child, including

the right as an agent of the child to act in

relation to the child's estate if the child's

action is required by a state, the United

States, or a foreign government;

(5) except as provided by Section

264.0111, the right to the services and

earnings of the child;

(6) the right to consent to the child's

marriage, enlistment in the armed forces

of the United States, medical and dental

care, and psychiatric, psychological, and

surgical treatment;

(7) the right to represent the child in

legal action and to make other decisions

of substantial legal significance

concerning the child;

(8) the right to receive and give receipt

for payments for the support of the child

and to hold or disburse funds for the

benefit of the child;

(9) the right to inherit from and through

the child;

(10) the right to make decisions

concerning the child's education; and

(11) any other right or duty existing

between a parent and child by virtue of

law.

(b) The duty of a parent to support his or her

child exists while the child is an

unemancipated minor and continues as long

as the child is fully enrolled in a secondary

school in a program leading toward a high

school diploma and complies with attendance

requirements described by Section

154.002(a)(2).

(c) A parent who fails to discharge the duty

of support is liable to a person who provides

necessaries to those to whom support is

owed.

(d) The rights and duties of a parent are

subject to:

(1) a court order affecting the rights and

duties;

(2) an affidavit of relinquishment of

parental rights; and

(3) an affidavit by the parent designating

another person or agency to act as

managing conservator.

(e) Only the following persons may use

corporal punishment for the reasonable

discipline of a child:

(1) a parent or grandparent of the child;

(2) a stepparent of the child who has the

duty of control and reasonable discipline

of the child; and

(3) an individual who is a guardian of

the child and who has the duty of

control and reasonable discipline of the

child.


B. Child’s Rights and Duties

Minor children have the rights, generally, to

support from their parent or guardian, Id., and the right

of a beneficiary against waste of assets under their

name by a parent, guardian, or custodian. In re

M.D.C., 171 S.W.3d 361 (Tex. App.—Dallas 2005, no

pet.). Minors typically do not have duties toward their

parents or third parties, with several exceptions. One

exception, outside the scope of this article, is the

obligations and responsibilities placed on minors under

the penal code. See generally Tex. Fam. Code Ann. §

54.02 (West) (waiver of jurisdiction by juvenile court

and discretionary transfer to criminal court); Tex. Pen.

Code Ann. § 8.07 (West) (age affecting criminal

responsibility). Another exception, which would be

rare to encounter but easy to overlook, is the married

minor.

C. Adoptive Parents

An order of adoption creates a parent-child

relationship between the adoptive parent and the child

―for all purposes.‖ Tex. Fam. Code Ann. § 162.017(a)

(West). This includes the child‘s right to inherit from

and through his or her adoptive parents. Id. at (b).

Adoption, however, does not ―preclude or affect‖ the

rights of a biological or adoptive maternal or paternal

grandparent to reasonable possession of or access to a

grandchild. Id. at (d).

D. Rights of Extended Relatives

If both of the parents of a child are deceased,

another relative may sue for appointment as a

managing conservator. Tex. Fam. Code Ann. §

153.431 (West). A biological or adoptive grandparent

may request possession or access by either filing an

original suit or a suit for modification under Chapter

156. Id. at § 153.432. Tex. Fam. Code § 153.433 lists



6

the requirements for a court to order a grandparent

access or possession.

The bar for non-parent access or possession when

one or both parents are alive is very high, a result of

the United States Supreme Court‘s ruling that the

decisions of a fit parent‘s right to make care, custody,

and control decisions regarding their children was a

―liberty interest‖ protected by the Due Process Clause

of the Fourteenth Amendment to the Constitution.

Troxel v. Granville, 530 U.S. 57; 120 S.Ct. 2054, 2060

(2000). The Texas Supreme Court adopted this ruling

in In re Derzapf, 219 S.W. 3d 327 (Tex. 2007) and the

legislature codified it in Tex. Fam. Code §§ 153.131

(presumption that parent be appointed managing

conservator) and 153.433.

E. Rights of Siblings

A sibling who has been separated from the child

that is the subject of the suit due to an action taken by

the Department of Family and Protective Services may

sue for access to that child. Tex. Fam. Code §

153.551.

F. Gestational Agreements

Chapter 160, Subchapter I of the Texas Family

Code contains statutory authority on gestational

(surrogacy) agreements. Tex. Fam. Code § 160.753

establishes a parent-child relationship between the

child and the intended mother (Subsection (a)) and

father (subsection (b)), and Tex. Fam. Code § 160.760

requires the intended parents file a notice of birth with

the court not later than the 300th day after the date

assisted reproduction occurred, and when the court

receives notice it must render an order confirming the

intended parents as the child parent‘s, surrender of the

child, etc.

VI. LIABILITY OF PARTIES

A. Liability of Parents to Children

1. Duty to Support

A parent has a duty to ―support the child,

including providing the child with clothing, food,

shelter, medical and dental care, and education‖ and

the duty of ―care, control, protection, and reasonable

discipline of the child.‖ Tex. Fam. Code Ann. §

151.001(a)(2) & (3) (West); R.W. v. Texas Dept. of

Protective & Regulatory Services, 944 S.W.2d 437,

440 (Tex. App.—Houston [14th Dist.] 1997, no writ).

This duty exists from the moment a parent, by his

actions, recognizes a child as his own, even when not

ordered by the trial court to do so. R.W. v. Texas Dept.

of Protective & Regulatory Services, 944 S.W.2d at

440; Curton v. Gordon, 510 S.W.2d 682 (Tex. Civ.

App.—Austin 1974, writ ref'd n.r.e.).

This duty to supply necessities to one‘s children

applies ―both before and after divorce.‖ Cordell v.

Cordell, 592 S.W.2d 84, 86 (Tex. Civ. App.—

Texarkana 1979, no writ) (citing Gully v. Gully, 111

Tex. 233, 231 S.W. 97 (1921); Cooper v. Cooper, 513

S.W.2d 229, 234 (Tex.Civ.App.—Houston 1st Dist.

1974, no writ); Ondrusek v. Ondrusek, 561 S.W.2d 236

(Tex.Civ.App.—Tyler 1978, no writ); Nixon v. Nixon,

540 S.W.2d 740 (Tex.Civ.App.—Texarkana 1976, no

writ); Wetzel v. Wetzel, 514 S.W.2d 283

(Tex.Civ.App.—San Antonio 1974, no writ);

Eggemeyer v. Eggemeyer, 535 S.W.2d 425

(Tex.Civ.App.—Austin 1976), Affirmed, 554 S.W.2d

137 (Tex.1977)). This duty is ―primary‖ and is

superior to the personal aspirations or ambitions of the

parent. Cordell v. Cordell, 592 S.W.2d 84 at 86

(father‘s legal duty to support his child is superior to

his educational and professional aspiration of

becoming a dentist).

The duty to support is statutorily created (see

above) and is enforced by the courts. There is no need

to prove breach of a fiduciary duty, merely that either a

prior support order has not been complied with or that

the parent has failed to provide for the necessities of

life for his or her child. See Daniels v. Allen, 811

S.W.2d 278, 280 (Tex. App.--Tyler 1991, no writ)

(citing Creavin v. Maloney, 773 S.W.2d 698, 702–703

(Tex.App.—Corpus Christi 1989, writ denied); Tex.

Fam. Code Ann. § 151.001(a)(2) (West).

Failure to support is sanctionable by criminal and

civil contempt. Tex. Fam. Code Ann. § 157.001

(West). See Appendix 1. ―An order of support, to be

enforceable by contempt, must be based upon statutory

authority.‖ 40 Tex. Jur. 3d Family Law § 1549 (citing

Ex parte Hall, 854 S.W.2d 656 (Tex. 1993)). The

judgment ―must set out the terms for compliance in

clear and unambiguous terms. Roosth v. Roosth, 889

S.W.2d 445, 452 (Tex. App.—Houston [14th Dist.]

1994, writ denied) (citing Ex Parte Brister, 801

S.W.2d 833, 834 (Tex.1990)). The judgment must also

clearly order the party to perform the required acts.

Roosth v. Roosth, 889 S.W.2d at 452 (citing Ex Parte

Brister, 801 S.W.2d at 834).

2. Harm to Child

Parents have immunity from their child's cause of

action for injuries arising out of essentially parental

activities involving issues of (1) supervision, (2)

discipline, (3) provision of a home, (4) provision of

food, (5) schooling, (6) medical care, (7) recreation,

and (8) family chores. McCullough v. Godwin, 214

S.W.3d 793, 801 (Tex. App.—Tyler 2007, no pet.); see

Felderhoff v. Felderhoff, 473 S.W.2d 928, 933

(Tex.1971); Plainview Motels, Inc. v. Reynolds, 127

S.W.3d 21, 41-42 (Tex. App.—Tyler 2003, pet.

denied); see also, e.g., Hoffmeyer v. Hoffmeyer, 869

S.W.2d 667, 668 (Tex.App.—Eastland 1994, writ

denied) (parental immunity applied to claim that parent



7

was negligent in supervising child when parent left

loaded gun in the room); Hall v. Martin, 851 S.W.2d

905, 910 (Tex. App.—Beaumont 1993, writ denied)

(parental immunity applied to claim that parent was

negligent in entrusting a motor scooter to child without

instructions or helmet); Shoemake v. Fogel, Ltd., 826

S.W.2d 933, 938 (Tex.1992) (parental immunity

applied to claim for negligent supervision of child who

drowned).

Certain situations do not amount to an exercise of

parental authority or discretion, Texas courts have

specifically held that the doctrine does not apply (1)

when a parent commits a willful, malicious, or

intentional wrong against a child or abandons or

abdicates his parental responsibility, (2) when the act

complained of arises outside of a normal family

relationship of a parent to a child, such as a business

activity in which the child is the employee and the

parent is the employer, and (3) when damages are

caused to the child by the parent's negligently

operating a motor vehicle. McCullough, 214 S.W.3d at

801; see Reynolds, 127 S.W.3d at 41; Hall, 851 S.W.2d

at 909.

The elements of the parental immunity affirmative

defense, which serves to bar tort claims brought against

parents by their unemancipated minor children, are:

(1) the injured party is an unemancipated

minor;

(2) the defendant is the minor's parent;

(3) the minor's alleged injury is a personal

injury;

(4) the claim is based on the defendant's

alleged negligence; and

(5) the minor's alleged injury arises from

the defendant's reasonable exercise of

parental authority, such as disciplining

or supervising a child, or the parent's

exercise of ordinary parental discretion

with respect to provisions for the care

and necessities of the child that the

parent was required to provide.

40A Tex. Jur. 3d Family Law § 1707 (citing Sepaugh

v. LaGrone, 300 S.W.3d 328 (Tex. App.—Austin

2009, pet. denied)).

3. Parents as Fiduciaries

Parents ―generally stand in the role of fiduciaries

toward their minor children.‖ S.V. v. R.V., 933 S.W.2d

1, 8 (Tex. 1996); see Thigpen v. Locke, 363 S.W.2d

247, 253 (Tex.1962) (fiduciary relationships may arise

informally from ―moral, social, domestic or purely

personal relationships‖); see generally Texas Bank &

Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980).

Parents can be liable as a fiduciary for waste of a

child‘s assets, but the plaintiff must establish there was

a fiduciary duty in existence beyond the standard

parent-child relationship outlined elsewhere in this

article (i.e., there must be some fiduciary obligation to

manage an asset for the benefit of the child) and there

must be evidence to support a finding finding.

In Rodriguez v. Rodriguez, the court affirmed the

trial court‘s ruling ordering reimbursement from the

mother to the son for violating her fiduciary duty as

constructive trustee by failing to set up a separate

savings account in trust for her child, depositing rental

income from an asset held in constructive trust into her

personal account instead of the separate trust account,

failing to account, encumbering an asset held in

constructive trust for personal benefit, and selling an

asset to be held in constructive trust trust for her son.

Rodriguez v. Rodriguez, 04-07-00252-CV, 2007 WL

3272133 (Tex. App.—San Antonio Nov. 7, 2007)

(mem. op.).

The attorney prosecuting a claim for breach of a

fiduciary duty, or requesting the creation of a

constructive or resulting trust, should be careful to

make sure the court enters into the record the trust

agreement or includes in its decree all necessary

language. In In re M.D.C., a judgment for children

against their mother was overturned due to their failure

to establish that the mother breached her fiduciary duty

by wasting trust and partnership assets by failing to

make part of the record the trust instrument and

partnership agreement mother. In re M.D.C., 171

S.W.3d 361 (Tex. App.—Dallas 2005, no pet.).

For a much more encompassing treatment of

parents as fiduciaries, see Elizabeth S. Scott and

Robert E. Scott, Parents as Fiduciaries, 81 Va. L. Rev.

2401 (1995).

B. Liability of Parents for the Conduct of Their

Children

1. Generally

At common law, ―the parent is generally not liable

for the tortious acts of a minor child. L. Wayne Scott,

Liability of Parents for Conduct of Their Child Under

Section 33.01 of the Texas Family Code: Defining the

Requisite Standards of "Culpability', 20 St. Mary's L.J.

69, 70 (1988). Exceptions to this general rule exist,

and the parent may be held liable if:

(1) the child is an agent of the parent;

(2) the parent negligently intrusts a

dangerous instrumentality to the child;

(3) the parent ratifies the conduct of the

child by acceptance or consent;

(4) the parent directs the child in the

commission of the tort;



8

(5) the tort is committed in the scope of

duties the parent imposes on the child.

Id. In Texas, common law ―only imposed liability

on a parent for the tort of a child when:

(1) a master/servant relationship existed

between the parent and child; Aetna Ins.

Co. v. Richardelle, 528 S.W.2d 280, 285

(Tex. Civ. App.—Corpus Christi 1975,

writ ref'd n.r.e.);

(2) the parent had directed the child in the

commission of the tortious act; Id.;

(3) the parent had negligently permitted this

child to engage in conduct likely to

harm another; Id.

Further, the usual exceptions to the general

rule of no parental liability found in other

states can be found in Texas. See, e.g.,

Amarillo Nat'l Bank v. Terry, 658 S.W.2d

702, 704 (Tex. App.—Amarillo 1983, no

writ) (parents liable for sons conduct only if

willful and malicious); Moody v. Clark, 266

S.W.2d 907, 912 (Tex. Civ. App.—

Texarkana 1957, writ ref'd n.r.e.) (parent

liable when own negligence proximately

causes injury). Such negligence is shown

when the parent entrusts the child with a

dangerous instrumentality, or carelessly fails

to restrain a child when he knows he has

dangerous tendencies. See id. But see Lessoff

v. Gordon, 58 Tex. Civ. App. 213, 215, 124

S.W. 182, 183 (Tex. Civ. App. 1909, no writ)

(parent not liable for torts of child committed

without parent's knowledge, consent or

participation).‖

20 St. Mary's L.J. at 75.

2. Harm to Property

The Texas Family Code states a parent or other

person who ―has the duty of control and reasonable

discipline of a child is liable for any property damage

proximately caused by:

(1) the negligent conduct of the child if the

conduct is reasonably attributable to the

negligent failure of the parent or other person

to exercise that duty; or

(2) the wilful and malicious conduct of a

child who is at least 10 years of age but

under 18 years of age.‖


―Texas and California have the highest recovery

limit among the states.‖ Eve M. Brank, Stephanie C.

Kucera, and Stephanie A. Hays, Parental

Responsibility Statutes: An Organization and Policy

Implications, 7 J. L. Fam. Stud. 1, 6 (2005). Damages

in Texas that fall under Tex. Fam. Code § 41.001 are

limited to actual damages, not to exceed $25,000 per

occurrence, plus court costs and reasonable attorney‘s

fees. Tex. Fam. Code Ann. § 41.002 (West). Tex.

Fam. Code Ann. § 41.0025 applies the above rules to

liability for property damage to an inn or hotel, with

the $25,000 per occurrence cap being defined in

Subsection (b) as ―one incident on a single day in one

hotel room‖ which ―does not include incidents in

separate rooms or incidents that occur on different

days.‖

The purpose of the parental liability provisions of

Chapter 41 is to protect and compensate property

owners from the wilful and malicious destruction of

their property by minors. Buie v. Longspaugh, 598

S.W.2d 673 (Tex. Civ. App.—Fort Worth 1980, writ

ref'd n.r.e.). The sections authorizing courts to impose

restitution on parents of delinquent children and

placing the burden on parents to prove their good faith

efforts to prevent delinquent behavior as a defense to

liability do not allow for arbitrary and discriminatory

application, violate due process, or deprive parents of a

reasonable opportunity to prepare a meaningful

defense. In re D.M., 191 S.W.3d 381 (Tex. App.—

Austin 2006, pet. denied).

3. Harm to Persons

Parental liability for the torts of a child committed

toward another is difficult to establish. See Childers v.

A.S., 909 S.W.2d 282 (Tex. App.--Fort Worth 1995,

no writ) (parents of minor child who made

inappropriate sexual contact with friend who was also

a minor were not liable to friend or friend‘s parents for

negligence or intentional tort, as they owed no duty to

them). ―The mere fact of paternity or maternity does

not make a parent liable to third parties for the torts of

his or her minor child.‖ Rodriguez v. Spencer, 902

S.W.2d 37, 42 (Tex. App.—Houston [1st Dist.] 1995,

no writ).

The 1st District Court of Appeals duscissed

parental liability for the tortious conduct of children in

depth in Rodriquez v. Spencer, 902 S.W.2d 37 (Tex.

App.—Houston [1st Dist.] 1995, no writ). The Court

of Appeals in Rodriquez v. Spencer, 902 S.W.2d at 43,

refused to adopt Restatement (Second) of Torts § 316

(1965), which states:

A parent is under a duty to exercise

reasonable care so to control his minor child

as to prevent it from intentionally harming

others or from so conducting itself as to



9

create an unreasonable risk of bodily harm to

them, if the parent (a) knows or has reason to

know that he has the ability to control his

child, and (b) knows or should know of the

necessity and opportunity for exercising such

control.

Some of the salient points made by the court were:

a. The statute providing that a parent has a duty

of ―care, control, protection, and reasonable discipline‖

of a child did not create a duty on the parent to protect

third parties from actions by the child; the provision is

limited to the parent-child relationship. Tex. Fam.

Code § 12.04(2) [now § 151.001];

b. The mere fact of paternity or maternity does

not make a parent liable to third parties for the torts of

his or her minor child; generally, minors are civilly

liable for their own torts;

c. A parent is protected from liability to a child

arising from torts of the child by the doctrine of

parental immunity;

d. A parent may be vicariously liable for a

minor's torts under respondeat superior or joint

enterprise or when the parent negligently permits a

child to act in manner likely to cause injury to another;

thus, negligence may be shown where a parent entrusts

a child with a dangerous instrumentality or carelessly

fails to restrain a child known to have dangerous

tendencies;

e. Parental anticipation of danger is an element

necessary to establish parental liability for a child's

tortious conduct against a third party;

f. The basis of a parent's duty to protect third

persons from a child's actions is the parent's

knowledge, consent, sanction, or participation in the

child's activities; actual knowledge is not required if

the parent should, under the circumstances, reasonably

anticipate consequences of parent's actions;

g. A parent's duty to protect third parties from

the acts of the parent's minor children depends on

whether the injury to the third party is reasonably

foreseeable under the circumstances as evidenced by

the parent's knowledge, consent, sanction, or

participation in the child's activities; in determining

existence of this third-party parental duty, the court

may also consider the risk to others and the likelihood

of injury weighed against the social utility of parent's

conduct, magnitude of burden of guarding against

injury, and consequences of placing that burden on the

parent.

The requirements of Rodriquez, particularly the

foreseeability requirement, creates a high bar for the

plaintiff to overcome in holding a parent liable for

injury caused by their child. In Newkumet v. Allen, 230

S.W.3d 518 (Tex. App.—Eastland 2007, no pet.), the

parents of a 13-year-old girl who caused an accident

while operating a jet boat that her parents owned could

not have been liable for negligent entrustment and

could not have been liable for negligent supervision of

daughter, absent evidence that parents should have

foreseen daughter's conduct. Absent evidence

indicating the parents knew she did not operate the

boat in a safe manner or was a danger to others, the

parents could not be held liable. Id. Another example

of how difficult it is to hold a parent liable for their

child‘s conduct is Prather v. Brandt, 981 S.W.2d 801

(Tex. App.—Houston [1st Dist.] 1998, pet. denied).

In that case, the Court held that a father was not

negligent in entrusting a shotgun to his teenage son,

which was later used in a drive by shooting, where

there was no evidence produced that the father knew or

should have known his son was incompetent, reckless,

or otherwise likely to act negligently with the gun.

In summary, a parent may be held liable for a

child's torts if the parent negligently allows his or her

child to act in a manner likely to harm another, if the

parent gives the child a dangerous instrumentality, or if

the parent does not restrain a child known to have

dangerous tendencies. Newkumet, 230 S.W.3d 518;

Rodriguez, 902 S.W2d 37. There must be a duty on

the parent to protect third parties from their child‘s

behavior to be negligent; this duty depends on whether

the injury was foreseeable, which is evaluated by

looking at the parent's knowledge of, consent to, or

participation in the child's activity. Newkumet, 230

S.W.3d 518; Rodriguez, 902 S.W2d 37. See Appendix

2 for a form pleading for negligent failure to control a

child.

If the parents are found liable, the panoply of

damages proximately caused by the torts of a child is

the same as in any other tort case. Generally,

exemplary damages will be extremely difficult to

prove, as they can be awarded only if the claimant

proves by clear and convincing evidence that the harm

with respect to which the claimant seeks recovery of

exemplary damages results from fraud, malice, or gross

negligence. Tex. Civ. Prac. & Rem Code Ann. §

41.003(a). See Appendices 3-6 for pattern jury

charges on breach of a fiduciary duty, actual damages

for breach, and removal of limitations on exemplary

damages.

C. Liability of Child to Others

―As a general rule, minors are civilly liable for

their own torts.‖ Childers v. A.S., 909 S.W.2d 282,

292 (Tex. App.—Fort Worth 1995, no writ) (citing

Rodriguez v. Spencer, 902 S.W.2d 37, 42 (Tex. App.-

Hous. [1st Dist.] 1995, no writ) (citing Williams v.

Lavender, 797 S.W.2d 410, 412 (Tex.App.—Fort

Worth 1990, writ denied) (minor liable for assault of



10

another minor) and Brown v. Dellinger, 355 S.W.2d

742, 746 (Tex.Civ.App.—Texarkana 1962, writ ref'd

n.r.e.) (suit against minors for trespass))); Prather v.

Brandt, 981 S.W.2d 801, 806 (Tex. App.—Houston

[1st Dist.] 1998, pet. denied) (citing Rodriguez, 902

S.W.2d at 42). Civil courts will look to the Texas

Penal Code for the elements of civil causes of action

against minors. Childers, 909 S.W.2d at 292. As such,

minors can be held to account for their intentional

torts. Id.

D. Limitations

―A person must bring suit on the following actions

not later than four years after the day the cause of

action‖ for breach of a fiduciary duty accrues. Tex.

Civ. Prac. & Rem. Code Ann. § 16.004(a)(5) (West).

A fiduciary's misconduct to be inherently

undiscoverable. Willis v. Maverick, 760 S.W.2d 642,

645 (Tex. 1988) (attorney); Slay v. Burnett Trust, 143

Tex. 621, 652, 187 S.W.2d 377, 394 (1945) (trustee).

If the plaintiff is unaware of the breach due to

fraudulent concealment of the breach, the running of

limitations is tolled until the fraud is discovered or

could have been discovered with reasonable diligence.

BP America Production Co. v. Marshall, 342 S.W.3d

59 (Tex. 2011); Kerlin v. Sauceda, 263 S.W.3d 920

(Tex. 2008); Slay, 187 S.W.2d at 394 (trustee); S.V. v.

R.V., 933 S.W.2d 1, 5-9 (Tex. 1996). See S.V. v. R.V.,

933 S.W.2d 1, for an excellent and exhaustive

discussion of limitations, minors, and the application of

the ―discovery rule‖ in actions involving minors.

VII. FIDUCIARY DUTIES OF COURT

APPOINTEES IN SUITS AFFECTING THE

PARENT-CHILD RELATIONSHIP (SAPCR)

A. Introduction

Generally, a fiduciary duty arises as a matter of

law in formal attorney-client and trustee relationships.

See Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex.2005).

The court may appoint, or may need to appoint, an

amicus attorney, an attorney ad litem, or a guardian ad

litem depending on whether the best interests of a child

is involved in a suit and those interests are not

adequately represented by a party to the suit whose

interests are not in conflict. Tex. Fam. Code Ann. §

107.021 (West); § 107.011 (mandatory appointment of

guardian ad litem); § 107.012 (mandatory appointment

of attorney ad litem). The question then is,who is a

fiduciary duty owed to and to whom is the attorney

liable? This Section will discuss the responsibilities

and duties owed by attorneys and experts appointed in

family law cases.

B. Attorney Ad Litem

1. Role of the Attorney Ad Litem

The Family Code defines an attorney ad litem as

―an attorney who provides legal services to a person,

including a child, and who owes to the person the

duties of undivided loyalty, confidentiality, and

competent representation.‖ Tex. Fam. Code Ann. §

107.001 (West). In essence, an attorney ad litem is the

child‘s counsel and must advocate for his or her client

as the client wishes. See Tex. Fam. Code § 107.003 for

a partial listing of some of the duties of an attorney ad

litem.

An attorney ad litem must be appointed in a suit

filed by a governmental entity seeking to terminate the

parent-child relationship or to be named conservator.

Tex. Fam. Code Ann. § 107.012 (West). An attorney

may be appointed in a dual role as both attorney ad

litem and guardian ad litem under Tex. Fam. Code §

107.0125, but this can cause a conflict for the attorney

if what the child wants differs from what is in the

child‘s best interest. If this occurs, § 107.0125(c)

allows the attorney to request the court to appoint

another person to serve as guardian ad litem for the

child; the court may also do this at any point during the

suit sua sponte under § 107.0125(b).

2. The Attorney Ad Litem‘s Fees

An attorney appointed under Chapter 107,

Subchapters A and B, of the Texas Family Code, see

Tex. Fam. Code §§ 107.001-107.023, serves as an

attorney ad litem for a child, an attorney in the dual

role, or an attorney ad litem for a parent ―is entitled to

reasonable fees and expenses in the amount set by the

court to be paid by the parents of the child unless the

parents are indigent.‖ Tex. Fam. Code Ann. §

107.015(a) (West). These expenses can be taxed as

costs to one or more parties before the court. Id. at (b);

Moore v. Moore, 898 S.W.2d 355 (Tex. App.—San

Antonio 1995, no writ). If indigency is shown, the

costs can also be allocated to the county. Tex. Fam.

Code Ann. § 107.015(c) (West).

A deposit should be ordered by the court when the

appointment is made, and another deposit in trust shold

be made prior to the final hearing. Tex. Fam. Code §

107.023(b) (West). See the Section immediately

following this for a discussion on reasonableness of the

fee.

C. Guardian Ad Litem

1. Role of the Guardian Ad Litem

A guardian ad litem acts as an officer and advisor

of the court whose task is to ascertain whether the

party‘s guardian or next friend has an adverse interest

to the party and to advise the court, in a limited

capacity, what is in the party‘s best interest. Tex. R.

Civ. P. 173.4. Once appointed, the guardian ad litem



11

displaces the next friend and becomes the personal

representative of the minor in the lawsuit. City of

Houston v. Woods, 138 S.W.3d 574, 579 (Tex. App.—

Houston [14th Dist.] 2004, no pet.) (citing Byrd v.

Woodruff, 891 S.W.2d 689, 705 (Tex.App.-Dallas

1994, writ dism'd by agr.).

A guardian ad litem must be appointed in a suit

filed by a governmental entity seeking termination of a

parent-child relationship or the appointment of a

conservator for a child. Tex. Fam. Code Ann. §

107.011 (West). The guardian ad litem must be

appointed after the filing of the petition, but before a

full adversary hearing. Id.

With respect to minors, a guardian ad litem is

required to participate in the case only to the extent

necessary to protect the minor's interest and should not

duplicate the work performed by the plaintiff's

attorney. Land Rover U.K., Ltd. v. Hinojosa, 210

S.W.3d 604 (Tex. 2006). A guardian ad litem is not an

attorney for the child but an officer appointed by the

court to assist in protecting the child's interests when a

conflict of interest arises between the child and the

child's guardian or next friend. Id.; Dawson v. Garcia,

666 S.W.2d 254 (Tex. App.—Dallas 1984, no writ);

Pleasant Hills Children's Home of the Assemblies of

God, Inc. v. Nida, 596 S.W.2d 947 (Tex. Civ. App.—

Fort Worth 1980, no writ). In short, the guardian ad

litem is not the child‘s attorney, but an officer

appointed by the court to assist in properly protecting

the child‘s interest. Woods, 138 S.W. 3d 579; Jocson

v. Crabb, 133 S.W.3d 268, 271 (Tex.2004); American

Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491,

493 n. 2 (Tex.1995).

A guardian ad litem must act as a fiduciary with

respect to the child's interests and, as a fiduciary, owe

the child a duty of integrity, loyalty, and utmost good

faith. Grunewald v. Technibilt Corp., 931 S.W.2d 593,

597 (Tex. App.—Dallas 1996, writ denied) (citing

Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex.App.—

Dallas 1994, writ dism'd by agr.).

2. The Guardian Ad Litem‘s Fee

An appointed guardian ad litem may request a

reasonable fee for his or her services, the amount of

which is left to the trial court‘s discretion and will not

be overturned absent evidence that the trial court

abused its discretion. Hinojosa, 210 S.W.3d at at 607;

Tex. Fam. Code § 107.023 (West); Tex. R. Civ. P.

173.6. A deposit should be ordered by the court at the

time of the appointment, and another deposit in trust

shold be made prior to the final hearing. Tex. Fam.

Code § 107.023(b) (West). Factors used to determine

reasonableness of the attorney‘s fees include:

(1) the time and labor required, the novelty

and difficulty of the questions involved, and

the skill required to perform the legal service

properly; (2) the likelihood ... that the

acceptance of the particular employment will

preclude other employment by the lawyer;

(3) the fee customarily charged in the locality

for similar legal services; (4) the amount

involved and the results obtained; (5) the

time limitations imposed by the client or by

the circumstances; (6) the nature and length

of the professional relationship with the

client; (7) the experience, reputation, and

ability of the lawyer or lawyers performing

the services; and (8) whether the fee is fixed

or contingent on results obtained or

uncertainty of collection before the legal

services have been rendered.

Hinojosa, 210 S.W.3d at 607 (citing Garcia v.

Martinez, 988 S.W.2d 219, 222 (Tex.1999); Arthur

Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 818

(Tex.1997)).

―A reasonable hourly rate multiplied by the

number of hours spent performing necessary services

within the guardian ad litem‘s role yields a reasonable

fee.‖ Hinojosa, 210 S.W.2d at 608; see Garcia, 988

S.W.2d at 222. Additonal sums are ―rarely

appropriate, particularly since the guardian ad litem

serves, in part, as an advisor to the court and will enjoy

the protection of qualified judicial immunity.‖

Hinojosa, 210 S.W.3d at 608.

D. Amicus Attorney

1. Role of the Amicus Attorney

In a suit in which the best interests of a child are

at issue, other than a suit filed by a governmental

entity, the court may appoint an amicus attorney. Tex.

Fam. Code Ann. § 107.021 (West); § 107.017 (the

―court may not appoint a person to serve as an amicus

attorney in a suit filed by a governmental entity under

this chapter‖). The family code defines an ―amicus

attorney‖ as ―an attorney appointed by the court in a

suit, other than a suit filed by a governmental entity,

whose role is to provide legal services necessary to

assist the court in protecting a child's best interests

rather than to provide legal services to the child.‖ Tex.

Fam. Code Ann. § 107.001(1) (West). Therefore, it is

the court, not the parties, to whom the amicus attorney

is responsible for the limited purposes delineated in the

statute governing such appointments, and the amicus

attorney owes a duty of competent representation (duty

of care) to the court, not to the parents. Id.; Zeifman

v. Nowlin, 322 S.W.3d 804, 808-09 (Tex. App.—

Austin 2010, no pet.).

An amicus attorney must:



12

(1) seek to elicit in a developmentally

appropriate manner the child's expressed

objectives of representation;

(2) with the consent of the child, ensure that the

child's expressed objectives of representation

are made known to the court;

(3) consider the impact on the child in

formulating the amicus attorney's

presentation of the child's expressed

objectives of representation to the court;

(4) review and sign, or decline to sign, an agreed

order affecting the child;

(5) explain the basis for the amicus attorney's

opposition to the agreed order if the amicus

attorney does not agree to the terms of a

proposed order;

(6) explain the role of the amicus attorney to the

child; and

(7) inform the child that the amicus attorney may

use information that the child provides in

providing assistance to the court.

40A Tex. Jur. 3d Family Law § 1921; Tex. Fam. Code

Ann. §§ 107.003, 107.005(b) (West). Notwithstanding

the foregoing, in determining the best interests of the

child, an amicus attorney is not bound by the child's

expressed objectives of representation. 40A Tex. Jur.

3d Family Law § 1921; Tex. Fam. Code Ann. §

107.005(a) (West).

2. The Amicus Attorney‘s Fee

"In a suit other than a suit filed by a governmental

entity requesting termination of the parent-child

relationship or appointment of the entity as conservator

of the child, in addition to the attorney's fees that may

be awarded under Chapter 106,‖ an amicus attorney is

entitled to reasonable fees and expenses in an amount

set by the court and ordered to be paid by one or more

parties to the suit. Tex. Fam. Code Ann. § 107.023(a)

(West). A deposit should be ordered by the court when

the appointment is made, and another deposit in trust

shold be made prior to the final hearing. Tex. Fam.

Code § 107.023(b) (West). See the Section

immediately above this for a discussion on

reasonableness of the fee.

E. Derived Judicial Immunity

1. Court Appointed Attorneys

Judges are absolutely immune from liability for

judicial acts that are not performed in clear absence of

all jurisdiction, no matter how erroneous the act or how

evil the motive. Delcourt v. Silverman, 919 S.W.2d

777, 781 (Tex. App.—Houston [14th Dist.] 1996, writ

denied). Judicial immunity protects not only the

individual judges, but benefits the public ―whose

interest it is that the judges should be at liberty to

exercise their functions with independence, and

without fear of consequences.‖ Id. (citing Bradley v.

Fisher, 80 U.S. (13 Wall) 335, 350, 20 L.Ed. 646

(1871) (citations omitted)). This protection extends to

officers of the court who are intergral parts of the

judicial process and to appointees of the court to whom

judges delegate their authority or request to perform

services. Delcourt, 919 S.W.2d at 781 (citing Byrd v.

Woodruff, 891 S.W.2d 689, 707 (Tex.App.—Dallas

1994, writ denied). This absolute immunity is referred

to as ―derived judicial immunity.‖ Delcourt, 919

S.W.2d at 781 (citing Clements v. Barnes, 834 S.W.2d

45, 46 (Tex.1992)).

Under a ―functional‖ approach to derived judicial

immunity, a party is entitled to immunity when the

party is ―acting as an integral part of the judicial

system or an ‗arm of the court‘.‖ Delcourt v.

Silverman, 919 S.W.2d 777, 782 (Tex. App.—Houston

[14th Dist.] 1996, writ denied) (citing Briscoe v.

LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75

L.Ed.2d 96 (1983)).

A guardian ad litem, an attorney ad litem, or

an amicus attorney appointed under this

chapter is not liable for civil damages arising

from an action taken, a recommendation

made, or an opinion given in the capacity of

guardian ad litem, attorney ad litem, or

amicus attorney.

Tex. Fam. Code Ann. § 107.009(a) (West). The

statutory immunity does not apply to an action taken,

recommendation made, or opinion given (1) with

conscious indifference or reckless disregard to the

safety of another; (2) in bad faith or with malice; or (3)

that is grossly negligent or willfully wrongful. Id. §

107.009(b); Zeifman, 322 S.W.3d at 807. There is no

exception to this statutory immunity for a claim that

the amicus attorney committed fraud with respect to

one of the parents of a child the attorney is assisting.

Zeifman, 322 S.W.3d at 807.

Once the attorney conclusively establishes the

affirmative defense of statutory immunity, the burden

of production shifts to the plaintiff to present evidence

sufficient to create a fact issue on at least one element

of either the affirmative defense or an exception to the

affirmative defense. Id.

2. Mental Health Expert (Psychologist or

Psychiatrist)

A psychologist or psychiatrist or psychologist

who is appointed by the court is entitled to derived

judicial immunity if he or she is appointed to fulfill

quasi-judicial functions intimately related to the

judicial process. Delcourt, 919 S.W.2d at 782.

Numerous courts have extended derived judicial



13

immunity to psychiatrists and other mental health

experts assisting the court in criminal cases. Id. The

14th Court of Appeals extended the reasoning of those

criminal cases, that the psychiatrist or mental health

professional performed a special task closely related to

the judicial process pursuant to a court directive, to

mental health experts providing psycholocial expertise

in child custody suits. Id. at 782-83. The court went

on to state:

When a court appoints a mental health

professional to examine the child and the

parents in a custody proceeding, the

professional is acting as a fact finder for the

court. The court relies on the professional to

provide information essential to the decision-

making process. Without the protection of

absolute immunity, such professionals would

be, at the very least, reluctant to accept these

appointments. This would in turn inhibit

judges from performing their duties.

Id. at 783.

IV. STATUTES – OTHER CODES & RULES

CREATING FIDUCIARY DUTIES TO

CHILDREN

A. ERISA Fiduciaries [29 U.S.C.A. §§ 1001-1461]

An ERISA plan can be attached to for the

purposes of family support, including the support of a

child. An order providing for this must be a qualified

domestic relations order (QDRO). See 29 U.S.C.A. §

1056 (West). If a child were named the alternate payee

on the plan, it is possible a court could find for a

constructive trust and hold any fiduciary who wasted

assets liable to the minor.

B. Guardian and Ward [Tex. Prob. Code §§

761(a)(6), 761(c)(1) and (4), 668(2)]

―A guardian is a statutory officer appointed by the

Probate Court to guard the interest of his ward and

provide for his education and maintenance.‖ Decker v.

Wiggins, 421 S.W.2d 189, 192 (Tex. Civ. App.—Fort

Worth 1967, no writ) (citing Dallas Trust & Sav. Bank

v. Pitchford, 208 S.W. 724, 724 (Tex. Civ. App.—

Dallas 1919, no writ). Depending on the scope of

powers granted to the guardian over the ward, this can

very much resemble the duties and rights that arise

under the law in parent-child relationships.

Unlike a guardian ad litem, a guardian under the

probate code is not entitled to derived judicial

immunity. Edwards v. Pena, 38 S.W.3d 191, 196

(Tex. App.--Corpus Christi 2001, no pet.). As

mentioned, particularly when dealing with minors,

these cases tend to look like suits between the parent

and child. ―A guardian takes possession of a ward's

property and manages the estate of the ward as a

prudent person would manage their own property.‖

Id.; Tex. Prob. Code Ann. § 768 (West). The probate

code specifically states that a guardian may be held

liable for failing to exercise due diligence in collecting

all claims and debts due the ward and recovering

possession of the ward's property. Tex. Prob. Code

Ann. § 772 (West); Edwards, 38 S.W.3d at 196.

A guardian is charged with the duty to properly

and prudently manage and control the ward and her

estate and has a fiduciary duty to maintain and preserve

the assets of that estate. Byrd, 891 S.W.2d at 706; Tex.

Prob. Code Ann. § 110(g) (West). Guardians owe a

fiduciary duty to wards and may be held liable if they

breach that duty. Edwards, 38 S.W.3d at 196 (citing

Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex. App.--

Dallas 1994, writ dism'd by agr.). In short, a guardian

of the estate has a fiduciary duty akin to a parent who

is the fiduciary of funds held in trust for their child, to

prudently manage the funds for the ward‘s/child‘s

benefit.

C. Next Friends [Tex. R. Civ. P. 44]

Minors, lunatics, idiots, or persons non compos

mentis who have no legal guardian may sue and be

represented by ―next friend.‖ Tex. R. Civ. P. 44. A

next friend ―shall have the same rights concerning such

suits as guardians have, but shall give security for

costs, or affidavits in lieu thereof, when required.‖ Id.

As such, a next friend in a suit bears the same

responsibilities as a guardian, discussed above.

In family cases, a next friend will usually be the

next adult relative who is not disqualified due to a

conflicting interest or for lack of capacity. Generally,

―anyone who will undertake the office may be the next

friend of a party and may maintain the suit in that

capacity, if it appears to the court to be for the benefit

of that party.‖ 57 Tex. Jur. 3d Parties § 22. Any adult

with capacity may sue as a next friend of a minor, so

long as it is in the minor‘s best interest. Id. (citing

Gordy v. Alexander, 550 S.W.2d 146 (Tex. Civ.

App.—Amarillo 1977, writ ref'd n.r.e.). This includes

mothers and fathers. Fall v. Weber, 47 S.W.2d 365

(Tex. Civ. App.—Dallas 1932, writ ref'd) (father as

next friend); Britt v. Luce, 114 S.W.2d 267 (Tex. Civ.

App.—Beaumont 1938, no writ) (mother as next

friend).

Any final settlement made by the next friend may

not be collaterally attacked by the minor later, provided

that the parent's interest is not preferred to the

detriment of the minor. 57 Tex. Jur. 3d Parties § 22

(citing Woodfin v. Coleman, 931 S.W.2d 383 (Tex.

App.—Austin 1996, writ denied). The same applies to

settlements approved by guardians ad litem. See

Grunewald v. Technibilt Corp., 931 S.W.2d 593 (Tex.

App.—Dallas 1996, writ denied) (parents lacked



14

standing as next friends of child to appeal trial court's

approval of settlement recommendation by guardian ad

litem who represented child in products liability action

brought on behalf of child against manufacturer of

product that injured child).

Should a conflict of interest arise between the

minor and next friend, the appointment of a guardian

ad litem is within the court‘s authority and is often

necessary. Byrd, 891 S.W.2d at 706. Once appointed,

the guardian ad litem displaces the next friend and

becomes the personal representative of the individual

subject to a legal disability (i.e., unemancipated

minors). Id.; Patterson v. McMickle, 191 S.W.3d 819

(Tex. App.—Fort Worth 2006, no pet.); Gallegos v.

Clegg, 417 S.W.2d 347 (Tex. Civ. App.—Corpus

Christi 1967).

D. Trustees [Tex. Prop. Code §§ 114.001-114.008]

―A trustee owes the trust beneficiary an

unwavering duty of good faith, fair dealing, loyalty,

and fidelity over the trust's affairs and its corpus.‖ 72

Tex. Jur. 3d Trusts § 65 (citing Herschbach v. City of

Corpus Christi, 883 S.W.2d 720 (Tex. App.—Corpus

Christi 1994, writ denied). A trustee is accountable to

a beneficiary for the trust property and must account

for the corpus and any income or profit made from the

corpus. Tex. Prop. Code Ann. § 114.001(a) (West);

King v. Tubb, 551 S.W.2d 436 (Tex. Civ. App.—

Corpus Christi 1977).

The Uniform Prudent Investor Act, effective

January 1, 2004, requires that a trustee:

invest and manage trust assets as a prudent

investor would, by considering the purposes,

terms, distribution requirements, and other

circumstances of the trust. In satisfying this

standard, the trustee must exercise reasonable

care, skill and caution.

72 Tex. Jur. 3d Trusts § 65; Tex. Prop. Code Ann. §

117.0004(a) (West). Decisions on how to administer

the trust‘s assets must be made by considering the

portfolio in total, keeping in mind the objective of the

trust and diversifying or investing as necessary to meet

the trust‘s objectives. 72 Tex. Jur. 3d Trusts § 65; Tex.

Prop. Code Ann. § 117.0004(b) (West).

The trustee is a fiduciary to the beneficiaries of the

trust, and negligent administration of the trust is a

breach of his or her fiduciary duty. Dickson v.

Dickson, 544 S.W.2d 200 (Tex. Civ. App.—Austin

1976, writ dism'd w.o.j.); Jewett v. Capital Nat. Bank

of Austin, 618 S.W.2d 109 (Tex. Civ. App.—Waco

1981, writ ref'd n.r.e.). Self-dealing is a violation of

the trustee‘s fiduciary duties and the trustee may be

removed or sued for damages. Fisher v. Miocene Oil

& Gas Ltd., 335 Fed. Appx. 483, 486 (5th Cir. 2009).

Good faith is not a defense where the trustee has been

negligent or has acted unreasonably. 72 Tex. Jur. 3d

Trusts § 70. The trustee is not liable for lossess or

depreciation that is ordinary and not a result of a

breach of trust. Id. at (b). Should the trustee breach

his or her duties under the trust, damages that may be

recovered against the trustee include:

(1) any loss or depreciation in value of the trust

estate as a result of the breach of trust;

(2) any profit made by the trustee through the

breach of trust; or

(3) any profit that would have accrued to the

trust estate if there had been no breach of

trust.

Id. at (c). Should the trustee breach the trust, the court

may order numerous remedies under Tex. Prop. Code

Ann. § 114.008 (West). These include ordering the

trustee to account, appointing a receiver to take

possession of and administer trust property, suspension

of the trustee, and other remedies. Id.

Further discussion of trusts and the duties of

trustees is beyond the scope of this article, but the

authors would direct your attention to the Section on

the duties of parents as stewards of property held in

trust or for the benefit of a minor, above.

E. Texas Uniform Tarnsfers to Minors Act

(TUTMA) [Tex. Prop. Code § 141.001-141.025]

Property may be transferred unter the Texas

Uniform Transfers to Minors Act by gift, legacy, or

other method. Tex. Prop. Code §§ 141.005-141.008.

The custodian shall:

(1) take control of custodial property;

(2) register or record title to custodial property if

appropriate; and

(3) collect, hold, manage, sell, convey, invest,

and reinvest custodial property.

Tex. Prop. Code Ann. § 141.013(a) (West). The

custodian must exercise a standard of care that would

be observed by a prudent person dealing with property

of another and must use any special skill or expertise

he or she possesses in the management of the property.

Id. at (b). One of the most important responsibilities

for a custodian is to keep ―separate and distinct‖ from

non-custodial property the assets held for the benefit of

the minor. Id. at (d). The custodian must also account

and maintain records of his or her activities. Id. at (e).

The custodian may, for the minor‘s benefit, use

custodial property, invest it, or transfer it into trust. Id.

at § 141.015. The custodian, like a trustee, is a

fiduciary to the minor whose property is being

beneficially held and has a duty to that minor to



15

administer the property for the minor‘s benefit. The

Virginia Supreme Court held custodians breached their

fiduciary duty by breaching the prudent investor rule

for the standard of care for speculative investments

made in his personal investment account that were

financed with UTMA funds, and were held liable to the

sum of $40,000 for lossess incurred from speculative

investments, commingling of custodial property and

personal property such that the custodial property

could not be identified, and were ordered to pay the

children‘s attorney‘s fees. Carlson v. Wells, 281 Va.

173 (2011).

Further discussion of TUTMA and custodial

property and the duties of custodians is beyond the

scope of this article, but the authors would direct your

attention to the Section on the duties of parents as

stewards of property held in trust or for the benefit of a

minor, above.

F. Family Limited Partnership [26 U.S.C.A. §

704(e)]

The Family Limited Partnership (FLP) is a tax and

estate planning vehicle under 26 U.S.C.A. § 704(e)

(West). This Section, and accompanying regulations,

provide the framework to treat certain partnership

income to the younger members of the partnership.

Typically, minors are not recognized as a member of

the partnership unless it is shown either that the minor

is competent to manage his or her own property and

participate in partnership activities or control of the

property is exercised by a fiduciary/custodian for the

minor‘s benefit.

An in depth discussion of fiduciary duties in

partnerships is beyond the scope of this article, but a

cursory discussion is appropriate due to the interaction

of those duties and minors in FLPs. A partner owes to

the partnership, and other partners, a duty of loyalty

and care and must discharge his or her duties in good

faith and in a manner reasonably believed to be in the

partnership‘s best interest. Tex. Bus. Org. Code Ann.

§ 152.204(a)-(b) (West); Hughes v. St. David's Support

Corp., 944 S.W.2d 423 (Tex. App.-Austin 1997, writ

denied). This duty also relates to the winding up of the

partnership business. Tex. Bus. Org. Code Ann. §

152.204(b) (West); M.R. Champion, Inc. v. Mizell, 904

S.W.2d 617 (Tex. 1995). ―A partner, in the partner's

capacity as partner, is not a trustee and is not held to

the standards of a trustee,‖ Tex. Bus. Org. Code Ann.

§ 152.204(d) (West), per se, but the courts have

recognized that the relationship between partners is

highly fiduciary in nature, and their dealings with each

other are subject to same scrutiny, intendments and

imputations as a transaction between an ordinary

trustee and his cestui que trust. Gum v. Schaefer, 683

S.W.2d 803 (Tex. App.—Corpus Christi 1984, no

writ), disapproved of on other grounds by Cortez ex

rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159

S.W.3d 87 (Tex. 2005).

In short, members of a FLP owe one another

fiduciary duties under the business code and,

additionally, may owe additional duties as a trustee or

custodian to a minor who is a member of the

partnership.



(1)

APPENDIX 1



(2)

6 Tex. Jur. Pl & Pr. Forms § 98:100 (2d ed.)

Texas Jurisprudence Pleading and Practice Forms

Database updated October 2011 Chapter 98. Divorce and Separation

IV. Enforcement Proceedings

Summary Correlation Table

§ 98:100. Motion to enforce child support order by contempt

No. ________

In the Matter of In the ________

[Family] District

the Marriage of Court of ________

County, Texas

________ ________ Judicial

District

________[Moving Party’s] Motion For Contempt For Failure to Pay Child Support

To the Honorable Court:

________[Movant], who resides at ________[address], brings this motion to request the court to enforce, by contempt, prior

orders entered in this action.

Respondent is ________[respondent’s name], who resides at ________[address].

This court has continuing jurisdiction of the parties and of the following ________[child or children] who ________[is or are]

not under the continuing jurisdiction of any other court:

Name: ________

Sex: ________

Birthplace: ________

Birth date: ________

Present residence: ________

________[Provide similar information for each additional child].

Movant is the temporary managing conservator of the ________[child or children] who ________[is or are] the subject of this

action. Respondent is the temporary possessory conservator of the ________[child or children] who ________[is or are] the

subject of this action.

The ________[child or children] for whom the child support payments ________ were ordered ________[has or have] not

reached the age of 18 years, died, married, or become otherwise emancipated, and the order referred to above has not been

amended in any way.

In support of this motion, movant shows:

http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=122659&cite=TXPPDMYSUMCH98&originatingDoc=Ifcb2a9d23fec11da8ec8ff7c29d94ce6&refType=DA&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)

http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=122659&cite=TXPPDMYCORCH98&originatingDoc=Ifcb2a9d23fec11da8ec8ff7c29d94ce6&refType=DA&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)



(3)

1. On ________[date], this court entered an order, designated as ________[specify order], which appears of record in volume

________, page ________, of the minutes of this court, which states in relevant part as follows: ________[quote portion of order

that respondent has failed to obey].

In the order described above, movant is the person entitled to receive payment for the support of the ________[child or

children]. Respondent is the person required to contribute to the support of the ________[child or children].

2. Respondent, ________[respondent’s name], who is the person ordered to make the child support payments described above,

has willfully disobeyed the order of this court by failing to make the following child support payments as ordered, and still

remains in arrears as of the date of hearing:

a. On ________[date], a payment of $________ was not made.

b. On ________[date], a payment of $________ was not made.

c. The total amount of payments not timely made is $________.

Respondent, ________[respondent’s name], is continually and purposely late in each payment of support, causing undue

hardship on movant and the ________[child or children].

3. Respondent, who is the person ordered to make the child support payments described above, has made the following

payments, though untimely:

a. On ________[date], a payment of $________ was made.

b. On ________[date], a payment of $________ was made.

c. On ________[date], a payment of $________ was made.

The total amount of payments made, though untimely, is $________.

4. The total arrearage of child support installment payments that respondent, ________[respondent’s name], has failed to pay,

amounts to $________. Respondent failed to make these payments, though ________[he or she] was able to obey the order of

this court.

5. Based on respondent‘s willful disobedience in the past of this court‘s order, as set forth in Paragraph 2 above, it is probable

that ________[he or she] will likewise violate the order by failing to make child support payments in the manner and amount

ordered by this court, on the ________[days of month, e.g. first and fifteenth] days of each month from the date of filing this

motion until the date on which this motion is heard. Movant requests this court to order respondent to make all child support

payments due and owing as of the date of hearing, including those that have accrued since this motion was filed.

6. The total amount of child support in arrears is equal to or is in excess of the amount due for a ________[two] month period at

the time of filing of this motion, and movant requests the court to order respondent to post bond in the amount of $________ to

secure the future payment of respondent‘s child support obligations.

In addition, movant requests the court to order income withholding. Pursuant to Section 158.001 et seq. of the Texas Family

Code, ________[employer], or any subsequent employer of ________[respondent], shall withhold from

________[respondent’s] disposable earnings the sum of $________ per month, in equal installments from each remuneration

paid by ________[employer] to respondent during said month, said amounts withheld not to exceed the maximum amount,

singly or in the aggregate, permitted by Section 303(b) of the Consumer Credit Protection Act, 15 U.S.C.A. § 1673(b).

Movant requests the court to enter an order including the following provisions:

It is ordered, adjudged, and decreed that the clerk of the court shall within five days of the signing of this order, upon receipt of a

fee of ________[$5] from ________[person paying fee], cause a certified copy of this order to be delivered to

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________[respondent’s employer], by certified mail, return receipt requested, together with a copy of Tex. Fam. Code Ann. §

158.003.

It is further ordered, adjudged and decreed that ________[employer] may deduct from monies paid to respondent, an

administrative fee not to exceed ________[$5] per month, with which respondent will be credited against the monthly child

support obligation.

It is further ordered, adjudged and decreed that ________[employer] shall begin to withhold income in accordance with this

order no later than the ________[pay period, e.g., first] pay period of ________[month] that occurs within ________[14] days

following the date upon which this order is received by ________[employer], and shall continue to withhold income so long as

respondent is obligated to make those payments and is employed or until ________[employer] is notified of further court orders

relieving ________[employer] of this duty.

It is further ordered, adjudged and decreed that each such amount withheld by ________[employer] shall be remitted

immediately, by cashier‘s check, money order, employer‘s check or other negotiable instrument, payable to

________[appropriate agency and address].

It is further ordered, adjudged and decreed that when and if respondent terminates employment with ________[employer], both

________[employer] and respondent shall notify the ________[appropriate court], and ________[other person to be notified]

in writing within ________[seven] days of termination, said notice to contain the cause number, name of possessory conservator,

name of managing conservator, the last known address or any subsequent employer of respondent, if known, and further,

________[person required to inform subsequent employer of court order, e.g., respondent] shall inform any subsequent

employer of this order upon any subsequent employment.

7. It was necessary to secure the services of ________[attorney], a licensed attorney with the law firm of ________[law firm], to

preserve and protect the rights of the ________[child or children], the subject(s) of this action and the movant, as well as to

obtain past payments of the ordered support. Respondent should be ordered to pay a reasonable attorney fee and costs of court,

and judgment plus interest should be rendered in favor of that attorney and against respondent, or in the alternative, that

reasonable attorney fee should be taxed as costs and be ordered paid directly to the undersigned attorney. In addition, respondent

should be ordered to pay to ________[attorney], an attorney fee incurred by movant for collecting past due support payments

from respondent each and every time respondent was continually and purposely late in payment. Petitioner has incurred the sum

of $________ for the collection of unpaid support in ________[year].

8. In the alternative, movant further shows the court that respondent presently owes to movant the sum of $________ for

nonpayment of child support for a period of ________[two] payments as previously alleged, that all of those payments have

matured, and that movant has a vested right in and to that sum and now requests the court to reduce such vested, matured

installment payments to judgment and that she have her execution thereon, together with all costs of court and an attorney fee,

and all additional child support payments that are due and owing as of the date of hearing.

9. Movant requests that an order be entered in this action granting her judgment in the total amount of $________ for the

matured installment payments that are due and owing as of the date of hearing, plus the amount of an attorney fee the court may

award in this action, and for all costs of court. To avoid any duplication of payments, she requests that the court provide that any

payments made by respondent under the contempt order should be credited to the amount of her judgment, thereby reducing that

judgment by the collected payments.

Prayer for Relief

Therefore, movant respectfully requests that this court:

1. Set a hearing and issue notice to respondent to appear and show cause why respondent should not be held in contempt of court

for disobedience of the court‘s order, and why movant should not recover from the respondent the sum of $________, plus all

additional child support payments that are due and owing as of the date of hearing, plus attorney fees and court costs, by

reducing the matured, vested child support payments to judgment, but that the order entered shall further provide that any

payments made by respondent under the contempt proceedings shall be credited to that judgment so that there may be no double

recovery against respondent, and why a reasonable attorney fee and costs should not be awarded to movant‘s attorney;

2. Confine respondent in the ________ County jail until respondent complies with the order of the court;





(5)

3. Award movant general relief.

[Signature, State Bar of Texas identification number,

address, telephone number, and, if available, telecopier

number of at least one attorney of record]

Verification

State of Texas )

)

County of ________ )

Before me, the undersigned notary public, on this day personally appeared ________[name of party], known to me (or proved to

me on the oath of ________ or through ________[description of identity card or other document]), who after being duly sworn,

upon ________[his or her ] oath stated that ________[he or she ] is the ________[party status] in the above-captioned cause;

that ________[he or she ] has read the foregoing document; and that every statement contained therein is true and correct within

________[his or her] personal knowledge.

_____________ [Signature of affiant]

SUBSCRIBED AND SWORN TO before me on this ________[date], to which I place my signature and official seal.

_____________ [Signature of Notary Public]

_____________ [Printed Name of Notary Public]

My Commission Expires: ________

Notary Public for the State of Texas



(6)

APPENDIX 2



(7)

9A Tex. Jur. Pl & Pr. Forms § 184:112 (2d ed.)

Texas Jurisprudence Pleading and Practice Forms

Database updated October 2011 Chapter 184. Parent and Child

II. Forms

B. Torts Involving Parent and Child

1. Parental Liability to Third Persons for Torts of Child

Summary References Correlation Table

§ 184:112. Petition—Injury inflicted by minor child—Negligent failure to control child

No. [number of cause]

[Name of plaintiff],

Plaintiff

In the [name of court] of

v. [Name of county], Texas

[Identification of district] Judicial District

[Name of defendant],

Defendant

Plaintiff’s [Original/[ordinal number of petition]] Petition

To the Honorable Judge of this court:

Plaintiff [name of plaintiff] files this petition complaining of defendants [name of defendant 1] and [name of defendant 2], and

in support respectfully shows:

1. Plaintiff intends to conduct discovery in this action under Level [1/2/3] pursuant to Tex. R. Civ. P. 190.

2. Plaintiff [name of plaintiff] is an individual residing at [address of plaintiff].

3. Defendant [name of defendant 1] is an individual residing at [address of defendant 1]. Defendant may be served with process

by serving [name of agent], [title of agent], at [address of agent].

4. Defendant [name of defendant 2] is an individual residing at [address of defendant 2]. Defendant may be served with process

by serving [name of agent], [title of agent], at [address of agent].

5. Defendant [name of child] is an individual residing at [address of child]. Defendant may be served with process by serving

[name of agent], [title of agent], at [address of agent].

6. This court has jurisdiction over the subject matter of this dispute under [citation of authority], in that [description of basis for

jurisdictional claim].

7. Venue is proper in [name of county], Texas under [citation of authority], in that [description of basis for claim of venue].

8. Defendants [names of defendant 1] and [name of defendant 2] are the parents of defendant [name of child]. At all times

mentioned in this petition, defendant [name of child] was under the exclusive control and custody of [his/her] parents, with

whom defendant [name of child] resides.

9. Sometime during [date of prior attack], defendant [name of child] without provocation, willfully and maliciously struck

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plaintiff‘s child, [name of plaintiff’s child] causing painful bodily injuries. On [date of informing authorities], plaintiff advised

defendants [name of defendant 1] and [name of defendant 2], and juvenile authorities, that the incident had taken place.

11. On [date of injury complained of], at [location of injury], at approximately [time of injury], defendant [name of child] again,

without provocation, willfully and maliciously struck [name of plaintiff’s child] with [identification of object], knocking [name

of plaintiff’s child] to the ground, then restrained [name of plaintiff’s child] from getting up, and forcefully and repeatedly struck

[name of plaintiff’s child] on and about the face and head with [identification of object], inflicting serious and disfiguring bodily

injuries requiring extensive medical treatment. These injuries may not be correctable and have caused, are causing and will

continue to cause [name of plaintiff’s child] severe physical and mental pain and suffering.

12. As the direct and proximate result of the unprovoked attack of defendant [name of child] on [name of plaintiff’s child],

plaintiff has incurred medical expenses, and will incur medical expenses in the future, in an amount within the jurisdictional

limits of this court.

13. Defendants [name of defendant 1] and [name of defendant 2], prior to the time of the second attack of their child on [name of

plaintiff’s child] knew of their child‘s tendency toward violent acts, and specifically of their child‘s previous violence against

[name of plaintiff’s child]. Despite that knowledge, defendant [name of defendant 1] and [name of defendant 2] made no

reasonable effort to correct or restrain defendant [name of child] from committing such violent acts. As a result, defendants

[name of defendant 1] and [name of defendant 2] encouraged and acquiesced in defendant [name of child]‘s violent acts.

Defendants‘ failure to correct or restrain their child is the direct and proximate cause of the injuries suffered by [name of

plaintiff’s child].

14. Defendants‘ conduct as described above constituted gross negligence, in that defendants acts or omissions, when viewed

objectively from the standpoint of the defendants at the time of the occurrence, involved an extreme degree of risk, considering

the probability and magnitude of the potential harm to others. Defendants had actual, subjective awareness of the risk involved,

but nevertheless proceeded with conscious indifference to the rights, safety, and welfare of others, including plaintiff. As a result,

plaintiff seeks exemplary damages in this action under Sections 41.001 et seq. of the Texas Civil Practices and Remedies Code.

Prayer for Relief

Therefore, plaintiff [name of plaintiff] respectfully requests judgment against defendants, jointly and severally, as follows:

1. For compensatory and punitive damages in an amount within the jurisdictional limits of this court;

2. Pre- and postjudgment interest on those amounts as permitted by law;

3. For costs of suit; and

4. For any other relief to which plaintiff is entitled.

Respectfully submitted,

_____________ [Name of plaintiff’s attorney]

Attorney for Plaintiff

Texas Driver‘s License Number: [last three digits of license number of plaintiff]

Social Security Number: [last three digits of social security number of plaintiff]

[Name of law firm of plaintiff’s attorney]

[Address of plaintiff’s attorney]

[Telephone number of plaintiff’s attorney]

[State bar number of plaintiff’s attorney]

[Certificate of service, see § 184:111]

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(9)

APPENDIX 3



(10)

Pattern Jury Charge 104.2: Question and Instructions – Breach of Fiduciary Duty with Burden on Fiduciary

QUESTION ______

Did Don Davis comply with his fiduciary duty to Paul Payne?

[Because a relationship of trust and confidence existed between

them,] [As Paul Payne’s attorney,] [Because they were partners,] [As Paul

Payne’s agent,] Don Davis owed Paul Payne a fiduciary duty. To prove he

complied with his duty, Don Davis must show—

a. the transaction[s] in question [was/were] fair and equitable to

Paul Payne; and

b. Don Davis made reasonable use of the confidence that Paul

Payne placed in him; and

c. Don Davis acted in the utmost good faith and exercised the

most scrupulous honesty toward Paul Payne; and

d. Don Davis placed the interests of Paul Payne before his own,

did not use the advantage of his position to gain any benefit

for himself at the expense of Paul Payne, and did not place

himself in any position where his self-interest might conflict

with his obligations as a fiduciary; and

e. Don Davis fully and fairly disclosed all important information

to Paul Payne concerning the transaction[s].

Answer ―Yes‖ or ―No.‖

Answer: _______________



(11)

APPENDIX 4



(12)

Pattern Jury Charge 104.3: Question and Instructions – Breach of Fiduciary Duty with Burden on Beneficiary

QUESTION ______

Did Don Davis fail to comply with his fiduciary duty to Paul Payne?

To prove Don Davis failed to comply with his fiduciary duty, Paul Payne must show—

a. the transaction[s] in question [was/were] not fair and equitable

to Paul Payne; or

b. Don Davis did not make reasonable use of the confidence that

Paul Payne placed in him; or

c. Don Davis failed to act in the utmost good faith or exercise the most

scrupulous honesty toward Paul Payne; or

d. Don Davis placed his own interests before Paul Payne‘s, used

the advantage of his position to gain a benefit for himself at

the expense of Paul Payne, or placed himself in a position

where his self-interest might conflict with his obligations as a

fiduciary; or

e. Don Davis failed to fully and fairly disclose all important

information to Paul Payne concerning the transaction[s].


Answer: _______________



(13)

APPENDIX 5



(14)

Pattern Jury Charge 115.18: Question – Actual Damages for Breach of Fiduciary Duty

[Insert predicate, PJC 115.1.]

QUESTION ______

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Paul Payne

for his damages, if any, that were proximately caused by such conduct?

Consider the following elements of damages, if any, and none other.

[Insert appropriate instructions. See examples in PJC 115.3 and 115.9.]

Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any.

a. [Element A] sustained in the past.

Answer: _______________

b. [Element A] that, in reasonable probability, will be sustained in the future.

Answer: _______________

c. [Element B] sustained in the past.

Answer: _______________

d. [Element B] that, in reasonable probability, will be sustained in the future.

Answer: _______________



(15)

APPENDIX 6



(16)

Pattern Jury Charge 115.18: Question and Instructions - Misapplication of Fiduciary Property as Ground for

Removing Limitation on Exemplary Damages

Answer the following question only if you unanimously answered ―Yes‖ to Question ______ [85.1].

Otherwise, do not answer the following question.

To answer ―Yes‖ to [any part of] the following question, your answer must be unanimous. You may

answer ―No‖ to [any part of] the following question only upon a vote of ten or more jurors. Otherwise, you

must not answer [that part of] the following question.

QUESTION ______

Did Don Davis intentionally misapply [identify property defendant held as a fiduciary] in a manner

that involved substantial risk of loss to Paul Payne [and was the value of the property $1,500 or greater]?

―Misapply‖ means a person deals with property [or money] contrary

to an agreement under which the person holds the property [or money].

―Substantial risk of loss‖ means it is more likely than not that loss

will occur.

A person acts with intent with respect to the nature of his conduct or

to a result of his conduct when it is the conscious objective or desire to

engage in the conduct or cause the result.


Answer: _______________

Fiduciary LitigationFiduciary LitigationDuties and Obligations Duties and Obligations

Between Parent, Child, and Between Parent, Child, and , ,, ,Third Parties Third Parties

ByBy

John F. Nichols, Sr. John F. Nichols, Sr.

Tristan H. LonginoTristan H. Longino

ForwardForward

“Parents generally stand in the role [status] of fiduciaries toward their minor children.” S.V. v. R.V., 933 ,S.W.2d 1,8 (Tex. 1996) (brackets added)

II.. IntroductionIntroduction

A.A. IntroductionIntroduction

The fiduciary relationship [status] is created The fiduciary relationship [status] is created y p [ ]y p [ ]by:by:

11.. statutestatute;;22.. commoncommon lawlaw;; oror33.. contractcontract

Fiduciary Litigation: Duties and Obligations between Parent, Child, and Third Parties Chapter 4

II. The Fiduciary RelationshipII. The Fiduciary Relationship

A.A. TheThe FiduciaryFiduciary

QQ.. WhatWhat isis aa “fiduciary?”“fiduciary?”AA.. AnyAny personperson whowho occupiesoccupies aa positionposition ofofyy pp pp pp

“peculiar“peculiar confidence”confidence” towardstowards anotheranother..KinzbachKinzbach ToolTool

B.B. TheThe FiduciaryFiduciary RelationshipRelationship

Arises when one is under a duty to act or Arises when one is under a duty to act or give advice for the benefit of another. give advice for the benefit of another. TXTX.. BkBk.. && TrTr.. vv.. MooreMoore

II. The Fiduciary Relationship (cont’d)II. The Fiduciary Relationship (cont’d)

1.1. FormalFormal relationships relationships ––arise as a “matter arise as a “matter of of law”law”ExampleExample: UTMA (Uniform Transfers To : UTMA (Uniform Transfers To Minors Minors ActAct))

2.2. InformalInformal relationships relationships ––arise as a “matter arise as a “matter of factof fact””

3. Duties (formal/informal3. Duties (formal/informal) of or to:) of or to:(1) Loyalty(1) Loyalty;;(2) Act (2) Act prudently;prudently;(3) Render (3) Render accurate accounts;accurate accounts;(4) Full (4) Full disclosuredisclosure

IIII.. TheThe FiduciaryFiduciary RelationshipRelationship (cont’d)(cont’d)

C.C. Breach of Fiduciary Duty Breach of Fiduciary Duty -- AnalysisAnalysis

(1)(1) Is there a duty?Is there a duty?(2)(2) Is there a breach?Is there a breach?( )( )(3)(3) Did the breach cause/result in damages?Did the breach cause/result in damages?(4)(4) What were the actual damages?What were the actual damages?(5)(5) Was there fraud, malice, or gross Was there fraud, malice, or gross

negligence?negligence?(6) What are the exemplary damages?(6) What are the exemplary damages?

(1) through (6) may be determined by (1) through (6) may be determined by statute, contract, or common law.statute, contract, or common law.


III. III. ReferencesReferences

A. StatusA. StatusErisaErisa, guardianships, ad , guardianships, ad litemslitems, next , next friends, personal reps, POAs, friends, personal reps, POAs, marriage/minors, marriage/minors, trustees.trustees.

BB. Common Law. Common LawExecutors/Trustees, POAs, spousesExecutors/Trustees, POAs, spouses

CC. Books, Articles & . Books, Articles & TreaticesTreaticesJoyce MooreJoyce Moore

IV. IV. Marriage & Emancipation Marriage & Emancipation –– MinorsMinors

A.A. Marriage of MinorsMarriage of Minors

11.. Minors lack capacity to consent to marry.Minors lack capacity to consent to marry.

2.2. Ceremonial marriage of minors requires Ceremonial marriage of minors requires parental consentparental consentparental consentparental consent..

33.. Common law marriage of minors is not Common law marriage of minors is not recognizedrecognized..

44. Annulment of marriage of minors under age . Annulment of marriage of minors under age 18 is permitted.18 is permitted.

5. Texas may grant comity to a valid out5. Texas may grant comity to a valid out--ofof--state state marriage of a marriage of a minor.minor.

IV. IV. Marriage & Emancipation Marriage & Emancipation –– Minors (Minors (con’tcon’t))

B.B. Emancipation of Minors Through Marriage.Emancipation of Minors Through Marriage.Marriage emancipates a minor.Marriage emancipates a minor.

C.C. Duration of Emancipation of Minor Through Duration of Emancipation of Minor Through MMarriage.arriage.Divorce of a minor does not reinstate minority Divorce of a minor does not reinstate minority status.status.


V.V. The Parent The Parent –– Child RelationshipChild Relationship

AA.. Parent’sParent’s RightsRights andand DutiesDuties((11)) healthhealth;;((22)) educationeducation;;((33)) welfarewelfare;;((33)) welfarewelfare;;((44)) supportsupport;; andand((55)) managementmanagement..

BB.. Child’sChild’s RightsRights andand DutiesDuties((11)) supportsupport;; andand((22)) protectionprotection ofof theirtheir assetsassets..

V.V. The Parent The Parent –– Child Child Relationship (Relationship (con’tcon’t))

CC.. AdoptiveAdoptive ParentsParents(1) (1) SStand in shoes of biological parent.tand in shoes of biological parent.(2) Does not affect rights of grandparents.(2) Does not affect rights of grandparents.

DD Ri htRi ht ff E t d dE t d d R l tiR l tiD.D. RightsRights ofof ExtendedExtended RelativesRelativesMust establish “standing.” Must establish “standing.”

E.E. RightsRights ofof SiblingsSiblingsSiblings have a right of access.Siblings have a right of access.

F.F. GestationalGestational AgreementsAgreementsIntended parents have superior rights over the Intended parents have superior rights over the surrogate, if proper filings have been made. surrogate, if proper filings have been made.

VI.VI. Liability of PartiesLiability of Parties

A.A. Liability of Parents to ChildrenLiability of Parents to Children

1.1. Duty of SupportDuty of SupportIncludesIncludes food,food, clothing,clothing, shelter,shelter, medical,medical, dental,dental,,, g,g, ,, ,, ,,education,education, care,care, control,control, protection,protection, andand reasonablereasonablediscipline,discipline, beforebefore andand afterafter divorcedivorce..

2.2. Harm to ChildHarm to ChildParentalParental immunityimmunity fromfrom liabilityliability arisingarising outout ofofparentalparental activitiesactivities ofof:: 11)) supervision,supervision, 22)) discipline,discipline,33)) providingproviding aa home,home, 44)) providingproviding food,food, 55)) schooling,schooling,66)) medicalmedical care,care, 77)) recreation,recreation, andand 88)) familyfamily choreschores..


VIVI Liability of Liability of Parties (Parties (con’tcon’t))

Exceptions to Parental Immunity For a Child:Exceptions to Parental Immunity For a Child:(1) willful, malicious or intentional wrongs (1) willful, malicious or intentional wrongs against a child or abandonment of against a child or abandonment of responsibility; responsibility; (2) business matters where parent is(2) business matters where parent is(2) business matters where parent is (2) business matters where parent is employer and child employer and child is employee; is employee; and and (3) negligent operation of a motor vehicle.(3) negligent operation of a motor vehicle.

3.3. Parents as FiduciariesParents as FiduciariesA.A. Liability for waste of child’s assets once fiduciary Liability for waste of child’s assets once fiduciary

relationship is established.relationship is established.B.B. Liability of parents for the conduct of their Children. Liability of parents for the conduct of their Children.

I. I. Generally a parent is not liable for torts of a Generally a parent is not liable for torts of a child.child.

VIVI Liability of Liability of Parties (Parties (con’tcon’t))

Exceptions to the rule are:Exceptions to the rule are:11)) agencyagency forfor child,child, 22)) negligentnegligent entrustment,entrustment,33)) ratification,ratification, 44)) parentalparental directiondirection inin thethe tort,tort,andand 55)) coursecourse andand scopescope ofof dutiesduties imposedimposedbyby parentparent..yy pp

II.II. Harm to PropertyHarm to PropertyExceptionException 11)) negligentnegligent conductconduct ofof childchild duedue totoparentalparental failurefailure toto exerciseexercise aa duty,duty, 22)) maliciousmaliciousconductconduct ofof childchild betweenbetween ageage 1010 andand 1818..

VI.VI. Liability of Liability of Parties (Parties (con’tcon’t))

III.III. Harm to PersonsHarm to PersonsRodriguezRodriguez vv.. SpencerSpencer –– aa parentparent isis underunder aa

dutyduty toto exerciseexercise reasonablereasonable carecare toto controlcontrolhis/herhis/her childchild fromfrom thethe commissioncommission ofofintentionalintentional andand unintentionalunintentional tortstortsintentionalintentional andand unintentionalunintentional tortstorts..

C.C. Liability of Child to OthersLiability of Child to OthersAsAs aa generalgeneral rule,rule, minorsminors areare civillycivilly liableliable forfor theirtheirownown tortstorts.. ChildersChilders vv.. AA..SS..,, citingciting RodriguezRodriguez vv..SpencerSpencer

D.D. LimitationsLimitations

FourFour yearsyears forfor fiduciaryfiduciary breachesbreaches.. TexTex.. CivCiv..PracPrac.. && RemRem.. CodeCode §§1616..004004(a)((a)(55))..


VII. VII. Fiduciary Duties of Court Appointees Fiduciary Duties of Court Appointees In SAPCR ActionsIn SAPCR Actions

A.A. IntroductionIntroduction

Generally,Generally, aa fiduciaryfiduciary dutyduty arisesarises inin aaparentparent--childchild actionaction appointmentappointment ifif thethe bestbestinterestinterest ofof thethe childchild isis anan issueissue..

B.B. Attorney Ad LitemAttorney Ad Litem

An attorney ad litem is the attorney for the An attorney ad litem is the attorney for the child, who is the client.child, who is the client.


C. Guardian Ad Litem

Acts as an officer or advisor to the court,,but must act as fiduciary with respect to thechild’s interests. Grunewald v. Technibilt.


D. Amicus Attorney

An attorney appointed to provide legalAn attorney appointed to provide legalservices necessary to assist the court inprotecting the child’s best interests ratherthan providing legal services to the child.



E. Derived Judicial ImmunityThe absolute immunity of the court andappointees of the court (attorneys, psychologists,psychiatrists) to whom the courts delegate theirauthority, or who are requested to performservices, is referred to as “derived judicialimmunity” as an “arm of the court.”


Exception –conscious indifference, reckless disregard,bad faith or malice or gross negligence org g gwillful and wrongful conduct.

VIII. VIII. Statutes Statutes –– Codes and RulesCodes and Rules

Creating Fiduciary Duties to Children

A. Erisa FiduciariesA. Erisa Fiduciaries

Plans designated for family child supportcan create a constructive trust and any wastingof assets could be a breach of fiduciary duty.



B. Guardian and Ward

A guardian takes possession of a ward’sproperty and manages the estate of the ward as aprudent person would manage their ownproperty.

C. Next Friends

Next friends bear the same responsibilitiesas a guardian.


D. Trustees

A trustee is liable for the negligentadministration of the trust.

E. Texas Uniform Transfers to Minors Act (TUTMA)

The custodian, like a trustee, is a fiduciaryto the minor whose property is being beneficiallyheld and has a duty to the minor to administer forthe minor’s benefit.


F. Family Limited Partnership

A partner owes to the partnership, andother partners, a duty of loyalty and care andmust discharge his or her duties in good faithand in a manner reasonably believed to be orthe partnership’s best interest.


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